aliXI^I 

m&m 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

John  Hogan 


MEDICAL  MEN  AND 
THE   LAW 


BY 
HUGH   EMMETT  CULBERTSON 

OF   THE   OHIO  AND   NEW   YORK   BARS;   CONTRIBUTING   EDITOR   TO   THE  LANING 

OHIO,  "  ENCYCLOPEDIC   DIGEST;  "   "  NOTES  ON  THE  AMERICAN  DECISIONS 

AND   REPORTS,"   AND   MANY   OTHER   LEGAL   PUBLICATIONS 


LEA    &    FEBIGER 
PHILADELPHIA    AND    NEW    YORK 


:;• 
..i/.:; 


T 


Entered  according  to  the  Act  of  Congress,  in  the  year  1913,  by 

LEA   &  FEBIGER, 
in  the  Office  of  the  Librarian  of  Congress.     All  rights  reserved. 


TO  MY  FATHER 


ELIHU  CULBERTSON,  M.D. 


PREFACE 


THE  title  of  the  book  shows  what  it  is,  or  at  least 
what  it  is  intended  to  be.  I  have  endeavored  to  deal 
with  all  the  main  features  in  the  modern  law  pertain- 
ing to  physicians  and  surgeons.  Obviously,  it  is  not 
intended  in  any  way  to  interfere  with  existing  text- 
books known  under  the  title  of  medical  jurisprudence, 
but  rather  to  supply  the  want,  which  many  other  persons 
have  long  felt, -of  a  work  of  this  character.  By  careful 
selection  it  has  been  found  possible  to  give  all  that  is 
of  substantial  present  importance  within  a  volume  of 
moderate  size.  I  hope  that,  written  on  these  lines, 
the  book  may  be  useful  to  physicians  and  surgeons, 
and  that  it  may  not  be  unacceptable  to  many  lawyers. 

H.  E.  C. 

LOUDONVILLE,    OHIO. 


CONTENTS 


CHAPTER     I 

INTRODUCTORY 17 

CHAPTER    II 
DEFINITIONS 

1.  Physicians 23 

2.  Consulting  Physician 24 

3.  Surgeons 24 

4.  Specialists 25 

5.  Itinerant  Physicians  and  Surgeons 25 

6.  Osteopathy 25 

7.  Midwifery 26 

8.  Ophthalmology 26 

9.  Oculist 26 

10.  Optician 26 

n.  Optometry 26 

12.  Bone  Setter .- 27 

13.  Christian  Science  Defined  or  Explained 27 

14.  Magnetic  Healing 28 

15.  Magic  Healers 28 

16.  Hypnotism .......  29 

CHAPTER    III 
WHO  MAY  PRACTISE   MEDICINE  AND  SURGERY 

I.  Constitutionality  of  Statutes  Regulating  the  Practice  of  Medicine     .  30 

a.  In  General 30 

b.  Statutes  Requiring  Good  Moral  Character 35 

c.  Statutes  Exempting  Consultants  from  Other  States    .      ...     .  36 

d.  Statutes  Forbidding  Soliciting  of  Patronage 36 

e.  Statutes  Authorizing  a  Professional  Tax 37 

/.  Statutes  Requiring  a  Report  of  Contagious  Diseases  ....  37 

g .  Statutes  Requiring  a  Report  of  Births  and  Deaths     ....  37 
h.  Statutes   Prohibiting   the   Practice   of    Medicine   by    Persons 

Convicted  of  a  Felony 37 


viii  CONTENTS 

2.  Requirements  for  Admission  to  Practice 38 

a.  In  General 38 

&.  What  Constitutes  a  School  of  Medicine 39 

(1)  In  General 39 

(2)  Osteopathy 40 

(3)  Clairvoyance 40 

c.  Necessity  of  License  or  Certificate 41 

d.  Sufficiency  of  License 43 

e.  Who  May  Issue  License 43 

/.    Authority  of  Medical  Boards  to  Refuse  License 44 

g.  Registration  of  License 44 

h.  Conclusiveness  of  Medical  Board's  Decision 46 

i.   Authority  to  Revoke  License 46 

j.   Grounds  for  Revocation  of  License  to  Practise 47 

(1)  In  General 47 

(2)  Unprofessional  or  Dishonorable  Conduct 48 

(3)  Procuring  Abortions 49 

(4)  Gross  Immorality 49 

(5)  False  Statements  and  Promises 49 

(6)  Advertising 50 

(7)  Distributing  Indecent  and  Obscene  Printed  Matter      .      .  50 

(8)  Fraudulent  Use  of  Diploma 51 

(9)  Concealing  a  Fetus 51 

k.  Proceedings  to  Revoke  License 51 

/.    Good  Moral  Character 52 

m.  Proof  of  Diploma 52 

3  .  What  Constitutes  Practising  Medicine  or  Surgery 53 


a.  In  General 


53 


b.  Osteopathy =* 


c.   Christian  Science 


55 


d.  Bone  Setting 

e.  Midwifery  and  Obstetrics 57 

/.    Ophthalmology 57 

g.  Treatment  of  Diseases  by  Science  of  Light 57 

h.  Healers         eg 

i.   Magnetic  Healers eg 

j.    Magic  Healing '  ^g 

k.  Clairvoyance eg 

/.    The  Giving  of  Electric  Treatments 59 

m.  Chiropractice en 

n.  Doctor  of  Mechano-neural  Therapy 59 

o.   Doctor  of  Dermatology  and  Physical  Education 60 

p.  Hypnotism  or  Massage 60 

q.  Professing  to  Cure  Opium  Habit 61 

r.   Vending  and  Administering  Patent  Medicines 61 

s.  Administering  Domestic  Remedy  for  Pay 63 

/.    Practising  under  Licensed  Physician 63 

4.  Right  of  Women  to  Practise  Medicine 63 

5.  Right  of  Corporations  to  Practise  Medicine 64 


CONTEXTS  ix 

CHAPTER    IV 

RELATION  OF  PHYSICIAN  TO  PATIENT 

1.  In  General , 65 

2.  Duty  to  Respond  to  All  Calls 65 

3.  Duty  of  Physician  to  Patient 65 

4.  Contract  of  Employment       .     „ 68 

a.  Express  Contracts       .      .      i 68 

b.  Implied  Contracts       .      .     '. 68 

5.  Duty  as  to  Frequency  of  Visits 70 

6.  Duration  of  Employment 70 

7.  Duty  as  to  Diagnosis  ...•• 71 

8.  Duty  as  to  Appliances      .      .     » 72 

9.  Duty  as  to  the  Use  of  Anesthetics 73 

10.  Duty  to  Give  Instructions     . 73 

11.  Duty  to  Avoid  Communicating  Contagious  Diseases        ....  74 

12.  As  to  Communications  by  Patient  to  Physician 75 

13.  Validity  of  Gifts  and  Conveyances  from  Patient  to  Physician    .      .  75 

14.  Duty  of  Patient  Toward  His  Physician 76 

15.  Sunday  Contracts 78 

CHAPTER     V 
COMPENSATION 

1 .  Right  to  Recover  Compensation 79 

a.  In  General 79 

b.  License  as  Prerequisite  to  Compensation 79 

c.  Registry  as  Prerequisite  to  Compensation 80 

d.  Effect  of  Revival  of  License  Act 8 1 

«.   Right  of  Christian  Scientist  to  Recover  Compensation     ...  81 

/.   As  Affected  by  Want  of  Skill  or  Care 81 

g.  Right  to  Compensation  Regardless  of  Result 83 

h.  Under  No  Cure  No  Pay  Contract 85 

*'.   Under  Conditional  Contract 85 

j.   Effect  of  Intoxication  of  Physician 85 

k.  Right  of  Consulting  Physician  to  Compensation 86 

/.   For  Services  Rendered  by  Students  and  Assistants     ....  87 

m.  For  Medicine  Furnished 87 

n.  For  Services  Rendered  on  Sunday 89 

o.  Physician  Attending  Physician 89 

p.  Where  Illness  Prevents  Performance  of  Contract 90 

q.  For  Services  in  Aid  of  Personal  Injury  Action 90 

2.  Who  are  Liable  for  Compensation 90 

a.  Liability  of  Patient 90 

(1)  In  General     .                 .      .  90 

(2)  For  Fees  of  Consulting  Physician 91 

(3)  For  Emergency  Services  Rendered  while  Unconscious  .      .  91 

(4)  Liability  of  Infants 91 


x  CONTENTS 

Who  are  Liable  for  Compensation — 

b.  Liability  of  Third  Persons 92 

(1)  In  General 92 

(2)  Liability  of  Husband  for  Attendance  upon  Wife    ...  92 

(3)  Liability  of  Wife  for  Attendance  upon  Husband  93 

(4)  Liability  of  Parent  for  Attendance  upon  Child  93 

(5)  Liability  of  Child  for  Attendance  upon  Parent  95 

(6)  Liability  of  Son-in-Law  for  Attendance  upon  Mother-in- 

Law .  97 

(7)  Liability  of  Brother  for  Attendance  upon  Brother   ...  97 

(8)  Liability  of  Master  for  Attendance  upon  Servant        .      .  97 

(9)  Liability  or  Non-liability  of  Master  for  Attendance  on 

Servant 100 

(10)  Liability  of  Railroads  for  Attendance  on  Employee    .      .  101 

(11)  Liability  of  Vessels  for  Attendance  upon  Seamen        .      .  102 

(12)  Liability  of  Party  Who  Summons  Physician     ....  102 

(13)  Liability  of  Corporation  Where  Physician  is  Summoned 

by  Agent 104 

(14)  Liability  of  Counties,  Towns,  etc.,  for  Medical  Services 

to  Indigent  Persons 105 

(15)  Effect  of  Statute  of  Frauds  on  Liability  of  Third  Person  108 

3.  Amount  of  Compensation 109 

a.  Under  Express  Contract 109 

b.  Under  Implied  Contract no 

c.  As  Affected  by  the  Patient's  Financial  Condition       .      .      .      .  no 

d.  As  Affected  by  Nature  of  Ailment in 

e.  As  Affected  by  the  Skill  of  the  Physician 112 

/.    As  Affected  by  the  Loss  of  Other  Practice 112 

g.  In  Cases  of  Epidemics 113 

h.  Right  to  Collect  Interest  on  Claim 1 13 

4.  Actions  for  Compensation 114 

a.  Limitation  of  Actions 114 

b.  When  Fees  are  Due     . 115 

c.  Right  to  Set  up  Malpractice  as  Defence 115 

d.  Intoxication  as  Defence 115 

e.  Evidence 115 

(1)  In  General 115 

(2)  Proof  of  Authority  to  Practise  Medicine 116 

(3)  Proof  as  to  Skill  and  Care 117 

(4)  Proof  of  Employment 117 

(5)  Proof  of  Services  Rendered 118 

(6)  Admissibility  of  Books  of  Account  to  Prove  Charges  for 

Services  Rendered 118 

(7)  Proof  of  Value  of  Services 121 

(8)  Presentation   and   Proof    of   Claims    against   Estates   of 

Decedents 123 

(9)  Physician's  Disqualification  against  Deceased  Persons  .      .  127 


CONTENTS  xi 

CHAPTER    VI 
MALPRACTICE  OR  NEGLIGENCE 

1.  Definitions 129 

a.  "Malpractice"                                                                                 .  129 

b.  "Ethical  Malpractice"                                                         .      .      .  129 

c.  "Criminal  Malpractice"  .           129 

d.  "Wilful  Malpractice"                  ......           ....  129 

e.  "Ignorant  Malpractice"  .                                                   ...  130 

2.  Degree  of  Care  and  Skill  Required  .                                  ....  130 

a.  General  Rule ....  130 

b.  Physician  as  an  Insurer    .      .  133 

c.  Errors  of  Judgment     .      .                 136 

d.  Necessity  of  following  Established  Modes  of  Practice     .           .  138 

e.  As  Measured  by  the  Practice  of  the  Particular  School     .  140 
/.   As  Dependent  upon  the  Locality  of  Practice    ....  *43 
g.  As  Affected  by  the  Advanced  State  of  the  Profession       .  144 

h.  As  Affected  by  Nature  of  Ailment .146 

*.   As  Affected  by  Habits  and  Tendencies  ....  .146 

j.   Where  Services  are  Gratuitous    ....                            .      .  148 

jfe.  Degree  of  Care  and  Skill  Required  of  Specialists  .  149 

/.    In  the  Use  of  Anesthetics      . 150 

m.  In  Making  Examinations       .....'.  152 

3.  Liability  for  Refusal  to  Take  Case   .      ,      .  152 

4.  Liability  for  Failure  to  Make  Proper  Diagnosis    *  153 

5.  Liability  for  Mistake  in  Prescription     ....  155 

6.  Liability  for  Neglect  as  to  Appliances    .     *      .      .  155 

7.  Liability  for  Failure  to  Give  Proper  Instructions  *                              .  162 

8.  Liability  for  Abandonment  of  Case  ......                      .     .  164 

9.  Liability  for  Performing  Operation  without  Patient  s  Consent            .  164 

10.  Liability  for  Failure  to  Secure  Consent  to  Perform  Autopsy  169 

11.  Liability  of  Surgeons  in  Particular  for  Malpractice     ...  171 

12.  Malpractice  in  Vaccination 184 

13.  Liability  for  Communicating  Contagious  Diseases  to  Patient     .      .  184 

14.  Liability  of  Physician  for  Injuries  Resulting  from  Electrical  or  X-ray 

Treatment 185 

15.  Liability  for  Deceit .  188 

16.  Liability  for  Making  Wrongful  Certificate  of  Insanity      .                  .  190 

17.  Liability  of  Surgeon  for  Acts  of  Assistants       .      .     .  194 

1 8.  Liability  for  Negligence  of  Partner 195 

19.  Liability  for  Negligence  of  Substitute    .      .  195 

20.  Liability  for  Taking  Unprofessional  Unmarried  Man  into  Lying-in 

Chamber 195 

21.  Liability  for  Injury  to  Attendant     ....                                  .  196 

22.  Effect  of  Contributory  Negligence  of  Patient  .                                  .  196 

a.  In  General .  196 

b.  Failure  of  Patient  to  Obey  Instructions  198 

c.  Where  Patient  is  Delirious     ....  '99 

d.  Failure  to  Secure  Assistants  ...  '99 

e.  Burden  of  Proving  Contributory  Negligence    .  199 


xii  CONTENTS 

23.  Liability  of  Hospitals  for  Negligence  of  Servants 200 

24.  Action  for  Malpractice 200 

a.  How  to  Defend  a  Malpractice  Suit .  200 

b.  Nature  of  Remedy 201 

c.  Who  May  Recover  Damages  for  Malpractice 202 

d.  When  Suit  Must  be  Commenced 202 

e.  Survival  of  Action 203 

/.    How  Malpractice  May  be  Proved 203 

g.  Defences •>.....  206 

(1)  In  General 206 

(2)  Admission  of  Inadequate  Skill 206 

(3)  Other  Proximate  Cause  of  Injury 206 

(4)  Negligence  of  Assistant 207 

(5)  Judgment  for  Services  as  Bar  to  Malpractice  Suit  .      .      .  208 

h.  Right  to  a  Physical  Examination  of  the  Plaintiff 209 

».   Who  are  Judges  of  Skill 210 

j.    Measure  of  Damages  in  Malpractice  Suits 211 

(1)  Compensatory  Damages 211 

(2)  Nominal  Damages 215 

(3)  Exemplary  Damages 215 

k.  New  Trial  or  Review 216 

CHAPTER     VII 
CRIMINAL  LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

1.  For  Unauthorized  Practice  of  Medicine 218 

a.  In  General 218 

b.  Burden  of  Proof 219 

c.  Proof  of  License  or  Diploma 219 

2.  For  Gross  Negligence  or  Lack  of  Skill 219 

3.  For  the  Procurement  of  Abortions 230 

a.  Abortion  Denned 230 

b.  Abortion  as  a  Crime 230 

c.  Pregnancy  as  Element  of  the  Offence 231 

d.  Malice  as  Element  of  the  Offence 2-32 

e.  Means  Employed 232 

(1)  In  General 232 

(2)  Administering  Drugs 232 

(3)  Noxious  Drugs 233 

(4)  Efficiency  of  Means 233 

(5)  Violent  Assault  and  Immoderate  Exercise 233 

/.   Liability  as  Principals 234 

g.  Liability  as  Accessories  and  Accomplices 234 

h.  Defences  to  Prosecution  for  Procuring  Abortion 234 

(1)  In  General 234 

(2)  Justification  for  Procuring  an  Abortion 234 

(3)  Alibi  as  Defence 236 

(4)  Consent  of  Woman 236 

(5)  Dead  Fetus  as  Defence 236 

(6)  Former  Acquittal 236 


CONTENTS  xiii 

For  the  Procurement  of  Abortions — 

*.   Mode  of  Trial  in  Abortion  Cases 237 

j.   Evidence  in  Abortion  Cases 237 

(1)  In  General 237 

(2)  Proof  of  Opportunities  and  Facilities 237 

(3)  Corroborative  Proof 240 

(4)  Proof  of  Intent • 241 

(5)  Dying  Declarations 242 

(6)  Declarations  of  Mother 244 

4.  For  Sale  of  Intoxicating  Liquors 246 

5.  For  Illegally  Prescribing  Intoxicating  Liquors 247 

6.  For  Prescribing  or  Administering  while  Intoxicated 249 

7.  For  Illegal  Use  of  Anesthetics 249 

8.  For  Obtaining  Money  under  False  Pretence 250 

9.  For  Sending  Obscene  Literature  in  the  Mails 252 

10.  For  Obscene  Advertisement 253 

1 1 .  For  Practising  Dentistry 254 

12.  For  Failure  to  File  Certificates  of  Births  and  Deaths       ....  254 


CHAPTER     VIII 
EXEMPTIONS  OF  PHYSICIANS  AND  SURGEONS 

1 .  Exemption  from  Jury  Duty 256 

2.  Exemption  from  Execution 256 


CHAPTER     IX 
PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

I.  Competency  of  Physicians  to  Testify  as  Experts 259 

a.  In  General 259 

b.  Competency  of  Opinions  Based  on  Statements  Made  Out  of 

Court 264 

c.  Competency  of  Opinions  Based  Partly  on  Patient's  Declarations  264 

d.  In  Cases  Concerning  Wounds 265 

e.  On  the  Cause  of  Death 266 

/.   On  the  Cause,  Nature,  and  Symptoms  of  Disease       ....  268 

g.  In  Malpractice  Cases 269 

h.  In  Cases  of  Rape 269 

*.   In  Prosecutions  for  Seduction 273 

j.   In  Cases  of  Abortion '     . 273 

k.  In  Cases  of  Miscarriage 274 

/.    In  Cases  Involving  the  Question  of  Pregnancy 274 

m.  In  Cases  Involving  Premature  Birth 275 

n.  In  the  Detection  of  Poisons 275 

o.  On  the  Effects  of  Drugs 276 


xiv  CONTENTS 

Competency  of  Physicians  to  Testify  as  Experts — 

p.  As  to  Mental  Condition 276 

(1)  In  General 276 

(2)  Qualifications  of  Experts  on  Insanity 276 

(3)  Weight  of  Opinions  as  to  Sanity 277 

q.  Bias  of  Experts .  278 

r.  Expert's  Fees 282 

5.   Hypothetical  Questions 285 

2.  Privileged  Communications 289 

a.  In  General 289 

b.  Necessity  of  Existence  of  Relation  of  Physician  and  Patient       .  291 

(1)  In  General 291 

(2)  Necessity  of  Person  Consulted  being  a  Physician    .      .      .  292 

(3)  Necessity 'of  Physician  Acting  Professionally      ....  292 

c.  What  Matters  are  Privileged 294 

(1)  In  General 294 

(2)  Health  of  Patient 295 

(3)  Nature  of  Ailment .  295 

(4)  Prescriptions  and  Certificates .  295 

(5)  Hospital  Records  as  Privileged  Communications     .      .      .  299 

(6)  Records  of  Health  Board 297 

(7)  Matters  Regarding  Autopsy .  297 

(8)  Communications  Made  for  Unlawful  Purpose    ....  297 

d.  Who  May  Claim  Privilege 298 

e.  Waiver 298 

(1)  In  General 298 

(2)  Who  May  Waive  Privilege 298 

(3)  How  Waiver  Effected 299 


CHAPTER     X 
RIGHT  TO  PROTECT  PROFESSIONAL  REPUTATION 

1.  In  General 301 

2.  Against  Imputation  of  General  Incompetency 301 

a.  In  General 301 

b.  Charging  a  Physician  with  being  no  Scholar 304 

c.  Ostentatious  Puffing 304 

d.  Calling  a  Physician  a  Quack 304 

e.  Charging  a  Physician  with  Drunkenness 304 

/.    Charging  a  Physician  with  Adultery 305 

g.   Imputing  General  Incompetency  to  Midwife 305 

3.  Against  Imputation  of  Incompetency  in  Particular  Case   ....  305 

a.  In  General 305 

b.  Charging  a  Physician  with  Killing  Patient 307 

c.  Charging  a  Physician  with  Lack  of  Skill 308 

d.  Charging  a  Physician  with  Unprofessional  Conduct    ....  308 

4.  Necessity  of  Complaining  Physician  being  Licensed 308 


CONTENTS  xv 

CHAPTER    XI 
VALIDITY  OF  CONTRACT  RESTRICTING  EXERCISE  OF  PROFESSION    309-311 

CHAPTER    XII 
WILLS 

1.  In  General 312 

2.  "Will"  Defined .      .  312 

3.  Who  May  Make  a  Will .  312 

4.  Necessity  of  Publication 313 

5.  Necessity  of  Signing  in  Testator's  Presence 313 

6.  Necessity  of  Subscription  of  Witnesses  in  Presence  of  Each  Other  .  313 

7.  Sufficiency  of  Subscription 3H 

8.  Capacity  for  Making  Will      ...                                                   .  314 

9.  Undue  Influence .  316 

10.  Right  of  Testator  to  Cut  off  Child   .                                                   .  316 

11.  Nuncupative  Wills       ....                                                           .  317 

12.  Form  of  Will 318 


MEDICAL  MEN  AND  THE  LAW 


CHAPTER    I 

INTRODUCTORY 

IT  has  been  our  object  in  this  work  not  merely  to 
show  that,  in  common  with  all  mankind,  medical 
practitioners  should  have  some  general  knowledge 
of  the  law,  without  which  they  cannot  in  any  scene 
of  life  discharge  properly  their  duty  either  to  the 
public  or  to  themselves,  but  also  to  demonstrate, 
that  there  are  many  and  intricate  branches  of  the 
law,  in  which  the  physician  or  surgeon,  by  competent 
knowledge,  may  not  only  materially  serve  himself  in 
reputation,  and  his  patients  by  advice,  but  also  render 
important  benefit  to  the  community.  It  is  true  that 
medical  practitioners,  for  reasons  hereafter  stated, 
are  exempt  from  serving  on  juries,  and  are  seldom 
charged  with  magisterial  duties;  but  can  they  restrain 
unlicensed  intruders,  or  punish  the  bad  practices  of 
ignorant  pretenders,  without  some  study  of  the  law? 
Can  they  vindicate  their  rights  without  reference  to 
the  numerous  acts  of  the  legislature  on  which  they 
are  founded?  Can  they  prove  the  guardians  of  the 
public  health  without  knowing  the  enactments  by 
which  it  is  protected?  Can  they  advise  the  legisla- 
tive or  executive  power  on  numerous  points  submitted 
to  their  consideration  without  understanding  the 
bearings  of  the  question  referred  to  them?  Can  they 


18  INTRODUCTORY 

successfully  suppress  malpractice  suits  when  they  are 
ignorant  of  what  the  law  requires  of  them  in  regard 
to  the  skill  and  care  to  be  exercised? 

Historical  Survey. — From  remote  times  the  practice 
of  medicine  has  been  regulated  by  law,  to  greater  or 
less  extent,  with  occasional  intervals  of  reaction  caused 
by  class  effort,  to  use  the  public  statute  for  private 
gain,  as  when  the  House  of  Lords,  reversing  the  law 
courts,1  and  deciding  that  apothecaries  might  pre- 
scribe drugs,  made  the  apothecary  the  general  medical 
practitioner  of  England.  Centuries  before  this,  how- 
ever, the  monks  and  the  clergy  in  England  had  almost 
exclusive  control  of  the  practice  of  medicine  and 
surgery.  In  1163  the  Council  of  Tours  enacted  that 
no  clergyman  or  monk  should  undertake  any  bloody 
operation,  and  from  that  time  the  clergy  confined 
themselves  to  prescribing  medicines,  and  the  practice 
of  surgery  fell  into  the  hands  of  the  barbers,  whose 
shops  were  marked  by  a  striped  pole  and  a  basin; 
the  fillet  around  the  pole  indicating  the  ribbon  for 
bandaging  the  arm  in  bleeding,  and  the  basin  the 
vessel  to  receive  the  blood. 

In  1540,  by  Act  of  Parliament,  the  incorporated 
companies  of  barbers  and  surgeons  were  united.  This 
union  was  dissolved  in  1745,  with  the  result  that  the 
barbers  were  ousted  and  that  the  surgeons  survived. 
Modern  medical  practice  cannot  be  said  to  have 
properly  commenced  in  England  until  the  beginning 
of  the  sixteenth  century,  and  promptly  in  1511  was 
passed  the  first  statute  for  regulating  the  medical 
profession,  that  of  3  Henry  VIII,  cap.  2,  the  pre- 
amble of  which  informs  us  that  "ignorant  persons, 
who  could  tell  no  letters  on  the  book,  and  common 
artificers,  smiths,  weavers,  and  women,  who  took 

1  Rose  v.  The  College  of  Physicians,  3  Salk,  17;  6  Mod.,  44. 


HISTORICAL  SURVEY  19 

upon  themselves  great  cures,  partly  using  sorcery 
and  witchcraft,  partly  applying  very  noxious  medi- 
cines to  the  diseases,"  were  then  practising  medicine 
and  surgery. 

By  the  statute  of  Henry,  the  profession  was  for 
the  first  time  divided  into  physicians  and  surgeons. 
It  also  enacted,  under  a  penalty,  that  "no  physician 
or  surgeon  shall  practise  in  London,  or  within  seven 
miles  of  it,  without  examination  by  the  Bishop  of 
London,  or  the  Dean  of  St.  Paul's,  and  four  doctors 
of  physic;  nor  out  of  the  city,  or  precinct,  but  if  he 
be  first  examined  and  approved  by  the  bishop  of  the 
diocese,  or  his  vicar  general,  calling  to  them  such 
expert  persons  irr  the  same  faculty  as  their  discretion 
shall  think  convenient." 

In  1560  surgery  was  declared  a  part  of  physic,  and 
the  practice  thereof  thrown  open  to  all  the  company 
or  fellowship  of  physicians.1  Numerous  Acts  of 
Parliament  have  been  passed  touching  the  medical 
profession  since  the  days  of  Henry  VIII.  One  under 
James  I  to  prevent  Popish  recusants  .practising  physic, 
or  using  or  exercising  the  trade  or  art  of  an  apothecary; 
another  under  William  and  Mary  for  exempting 
apothecaries  from  serving  as  constable  or  scavengers; 
another  for  exempting  spirits  and  liquors  used  by 
physicians  in  the  preparation  of  medicine  from  duty, 
and  scores  of  others,  including  the  Medical  Act  of 
1858,  as  amended  by  22  Viet. 

Our  ancestors  on  this  side  of  the  Atlantic,  in  the 
year  1649,  when  physicians  were  few  and  quacks  were 
numerous,  endeavoring  to  guard  against  the  folly 
and  presumption  of  ignorant  practitioners,  passed  the 
following  ordinance:  "For  as  much,  as  the  law  of 
God  allows  no  man  to  impair  the  life  or  limbs  of  any 

1  32  Henry  VIII,  cap.  40. 


20  INTRODUCTORY 

other,  but  in  a  judicial  way,  it  is,  therefore,  ordered, 
that  no  person  or  persons  whatsoever,  employed  at  any 
time  about  the  bodies  of  men,  women,  and  children, 
for  the  preservation  of  life  or  health,  as  surgeons, 
midwives,  physicians,  or  others;  presume  to  exercise 
or  put  forth  any  act  contrary  to  the  known  approved 
rules  of  the  art,  in  each  mystery  and  occupation; 
nor  exercise  any  force,  violence,  or  cruelty  upon  or 
toward  the  body  of  any,  whether  young  or  old  (no 
not  in  the  most  desperate 'and  difficult  cases)  without 
the  advice  and  consent  of  such  as  are  skilful  in  the 
same  art  (if  such  may  be  had),  or  at  least  some  of 
the  wisest  and  gravest  there  present,  and  consent 
of  the  patient  or  patients,  if  they  be  mentis  compotes, 
much  less  contrary  to  such  advice  and  consent;  upon 
such,  severe  punishment,  as  the  nature  of  the  fact 
may  deserve — which  law  nevertheless  is  not  intended 
to  discourage  any  from  all  lawful  use  of  their  skill* 
but  rather  to  encourage,  and  direct  them  in  the  right 
use  thereof;  and  inhibit  and  restrain  the  presumptory 
arrogancy  of  such  as  through  perfidence  of  their  own 
skill,  or  any  other  sinister  respects,  dare  boldly  to 
attempt  to  exercise  any  violence  upon  or  toward  the 
bodies  of  young  or  old,  one  or  other,  to  the  prejudice 
or  hazard  of  the  life  or  limb  of  man,  woman,  or  child.  MI 
Thus  from  time  to  time  not  only  have  the  law-making 
departments  of  the  countries  across  the  sea  enacted 
laws  for  the  protection  of  society  against  the  quack 
and  the  unqualified,  but  the  legislatures  of  the  several 
States  have,  under  their  right  to  provide  for  the 
public  welfare,  passed  laws  regulating  the  practice  of 
medicine. 

Law   in    General. — Law,    in   its   widest   sense,    is   a 
rule   of  action,    prescribed   by   a  superior  and   which 

1  Old  Colony  Laws,  p.  28. 


INTERNATIONAL  AND  MUNICIPAL  LAW          21 

the  inferior  is  bound  to  obey.  Law,  in  its  technical 
sense,  is  a  rule  of  civil  conduct,  prescribed  by  com- 
petent political  authority,  commanding  certain  things 
as  necessary  to,  and  forbidding  other  certain  things  as 
inconsistent  with,  the  peace  and  order  of  society.1 

International  and  Municipal  Law. — Law,  in  this 
latter  sense,  is  of  two  kinds,  international  and  muni- 
cipal. International  law  is  that  rule  of  civil  conduct 
which  is  prescribed  by  the  common  consent  of  Christian 
nations,  and  regulates  their  intercourse  with  one 
another.  Municipal  law  is  that  rule  of  civil  conduct 
which  is  prescribed  by  the  supreme  power  in  a  State, 
and  regulates  the  intercourse  of  the  State  with  its 
subjects  and  of  those  subjects  with  each  other.2 

AMERICAN  MUNICIPAL  LAW. — As  to  its  object, 
this  is  of  two  kinds,  Federal  and  State.  Federal 
law  is  that  rule  of  civil  conduct  which  is  prescribed 
by  the  supreme  power  in  the  United  States,  and  regu- 
lates, in  matters  of  a  national  character,  the  inter- 
course of  the  federal  government  with  the  people, 
and  of  the  people  with  each  other  or  ^with  citizens 
of  foreign  States.  State  law  is  that  rule  of  civil  con- 
duct which  is  prescribed  by  the  supreme  power  in 
each  individual  State,  and  regulates,  in  all  matters 
not  of  a  national  character,  the  intercourse  of  such 
State  with  its  own  people  and  of  its  people  among 
themselves. 

Unwritten  and  Written  Law. — American  municipal 
law  is,  as  to  its  origin,  of  two  kinds,  unwritten  and 
written.  Unwritten  law  (known  also  as  common 
law)  is  that  rule  of  civil  conduct  which  originated 
in  the  common  wisdom  and  experience  of  society,  in 
time  became  an  established  custom,  and  has  finally 

1  Blackstone  Comm.,  pp.  38-44. 
*  Kent  Comm.,  i,  pp.  1-4. 


22  INTRODUCTORY 

received  judicial  sanction  and  affirmance  in  the  deci- 
sion of  the  courts  of  last  resort.  Written  law  is  that 
rule  of  civil  conduct  which  has  been  prescribed  directly, 
in  so  many  words,  by  the  supreme  power  of  the  State 
itself. 

The  United  States,  as  such,  has  no  common  or 
unwritten  law;  and  when  its  courts  are  called  upon 
to  administer  the  principles  of  that  law,  they  are 
guided  by  it  as  it  exists  in  the  State  where  the  cause 
arose.  In  Louisiana  the  Roman  or  Civil  Law  is  the 
source  and  depository  of  unwritten  law.  In  the  other 
States  the  courts  have  assumed,  or  the  legislatures 
or  constitutions  have  declared,  the  written  and  un- 
written law  of  England,  as  it  existed  at  the  Revolu- 
tion, to  be  the  common  law  of  such  States,  so  far  as 
it  was  applicable  to  the  situation  of  their  people. 

The  written  law  of  the  United  States  consists  of 
the  Federal  Constitution,  the  Acts  of  Congress,  and 
the  Treaties  made  by  its  authority.  The  written  law 
of  the  individual  State  consists  of  its  Constitution  and 
its  Statutes.1 

The  Law  and  Health. — The  law  protects  health:2 
(i)  By  giving  to  the  party,  whose  health  is  endangered, 
the  right  to  remove  the  cause  of  danger,  whenever 
this  can  be  done  without  disturbing  the  public's 
peace;  (2)  by  punishing,  as  criminal  offences,  those 
actions  or  omissions  which  endanger  health;  (3)  by 
giving  compensation  to  the  injured  person  in  a  suit 
at  law;  (4)  by  compelling  the  person,  in  whose  actions 
or  omissions  the  cause  of  danger  has  originated  to 
remove  it. 

1  Robinson's  Elementary  Law,  pp.  2,  5. 

2  Ibid.,  p.  17. 


CHAPTER    II 

DEFINITIONS 

Physicians. — A  physician  is  defined1  to  be  a  person 
who  has  received  the  degree  of  Doctor  of  Medicine 
from  an  incorporated  institution;  one  lawfully  engaged 
in  the  practice  of  medicine.  This  definition  does  not 
confine  the  class  to  those  who  have  graduated  at  a 
medical  college,  but  includes,  as  well,  all  who  are 
lawfully  engaged  in  the  practice  of  medicine,  whether 
graduates  or  not.  The  word  in  its  popular  sense 
means  "one  who  professes  or  practises  medicine, 
or  the  healing  art,  a  doctor."2  "Doctor,"  "person 
practising  medicine,"  and  "physician"  are  often 
used  as  synonymous  and  interchangeably.3  Other 
definitions  of  physicians  are:  "One  authorized  to 
prescribe  remedies  for  and  treat  disease;  a  doctor  of 
medicine;"4  "one  who  practises  the  art  of  healing 
disease  and  preserving  health;  a  prescriber  of  remedies 
for  sickness  and  disease;"5  "one  qualified  and  author- 
ized to  prescribe  remedies  for  diseases;"6  "one  who 
is  versed  in  medical  science,  a  branch  of  which  is 
surgery."7  The  statutes  of  a  great  many  States 

1  Bouvier,  Law  Diet,  (quoted  in  Harrison  v.  State,  102  Ala.,  170;  15  So.,  563; 
William  Laurie  Co.  v.  McCullough,  90  N.  E.,  1018). 

1  Worcester  Diet,  (quoted  in  Harrison  v.  State,  102  Ala.,  170,  173;  15  So., 
563;  Whitlock  P.  Com.,  89  Va.,  337;  15  S.  E.,  893). 

'  Harrison  v.  State,  102  Ala.,  170,  172;  15  So.,  563. 

4  Webster  Diet,  (quoted  in  Sutton  v.  Facey,  I  Mich.,  243;  State  P.  McMinn, 
118  N.  C.,  1259,  1261;  24  S.  E.,  5237). 

•  State  P.  Beck,  21  R.  I.,  288,  291;  43  Atl.,  366. 

•  Prowitt  P.  Denver,  u  Colo.  App.,  70;  52  Pac.,  286,  287. 
T  102  Minn.,  346,  351 ;  113  N.  W.,  690. 


24  DEFINITIONS 

have  defined  who  are  to  be  recognized  as  physicians 
or  surgeons.  A  physician  or  surgeon  is  defined  by 
statute,  in  Arkansas,  to  be  one  who  prescribes  or 
administers  medicine  for,  or  in  any  manner  treats, 
diseases  or  wounds  for  pay.  Osteopaths1  and  homeo- 
paths2 are  included  in  the  term  "physicians,"  but 
dentists3  are  not;  neither  does  a  physician's  license 
cover  the  practice  of  dentistry.4  There  are  a  few 
cases,  however,  which  hold  that  dentistry  is  a  depart- 
ment of  the  medical  art.  In  State  v.  Beck,  21  R.  I., 
288,  the  court  recognized  it  as  a  branch  of  surgery. 
Magic  healers  or  those  who  profess  to  heal  the  sick 
by  magic,  psychic,  or  supernatural  agency  may  be 
impostors,  but  they  are  not  physicians.5  An  ortho- 
pedist6 who  has  not  received  a  physician's  license 
is  not  a  physician. 

Consulting  Physician. — "A  physician  who  consults 
with  an  attending  practitioner  required  in  cases  of 
disease"  is  held  to  be  a  consulting  physician.7 

Surgeons. — A  surgeon  is  a  physician  who  treats 
bodily  injuries  and  ills  by  manual  operations  and  the 
use  of  surgical  instruments  and  appliances.8 

Dentists  have  been  held  not  to  be  surgeons  by  the 
highest  courts  of  some  States.9  Some  courts  have 
held  that  dentistry  is  a  branch  of  surgery,  holding 

1  Bandel  v.  Health  Department,  193  N.  Y.,  133. 

2  Corsi  v.  Maretzek  (N.  Y.),  43  D.  Smith,  I,  7;  Raynor  ».  State,  62  Wis., 
289;  22  N.  W.,  430. 

3  People  v.  Phippin,  70  Mich.,  6;  State  v.  Fisher,  119  Mo.,  344;  24  S.  W., 
167;  State  v.  McMinn,  118  N.  C.,  1259;  24  S.  E.,  523. 

4  City  of  Cherokee  v.  Perkins,  118  la.,  405;  State  v.  Taylor,  106  Minn., 
218,  118  N.  W.,  1012;  State  v.  Beck,  21  R.  I.,  288;  43  Atl.,  366. 

6  Richardson  v.  State,  47  Ark.,  562;  2  S.  W.,  187. 

6  William  Laurie  Co.  v.  McCullough,  90  N.  E.,  1014. 

7  U.  R.  Ry.  Co.  v.  Graddy,  25  Neb.,  854  (quoting  Dunglison). 

8  Goss  v.  Goss,  102  Minn.,  346,  351;  113  N.  W.,  690. 

9  People  v.  De  France,  104  Mich.,  563;  62  N.  W.,  709;  State  v.  Fisher,  119 
Mo.,  344;  24  S.  W.,  167. 


OSTEOPATHS  25 

that  a  dentist  is  a  dental  surgeon.1  In  England,2 
a  surgeon  is  a  practitioner  who  holds  a  diploma  from 
the  Royal  College  of  Surgeons,  but  who  has  not  the 
degree  of  M.D. 

Specialists. — A  specialist,  as  the  term  is  here  used, 
is  understood  to  mean  a  physician  or  surgeon  who 
applies  himself  to  the  study  and  practice  of  some 
particular  branch  of  his  profession.3 

Itinerant  Physicians  and  Surgeons. — Itinerant  phy- 
sicians and  surgeons  are  persons  who  in  some  form, 
or  following  some  school,  practise  either  medicine  or 
surgery,  or  both.4 

Osteopaths. — Osteopathy  is  defined  as  "a  method 
of  treating  diseases  of  the  human  body,  without 
the  use  of  drugs,  by  means  of  manipulations  applied 
to  various  nerve  centres,  chiefly  those  along  the 
spine,  with  a  view  to  inducing  free  circulation  of  the 
blood  and  lymph,  and  an  equal  distribution  of  the 
nerve  forces."5  The  practice  of  osteopathy  consists 
principally  in  rubbing,  pulling,  and  kneading  with 
the  hands  and  fingers  certain  portions  of  the  body, 
and  flexing  and  manipulating  the  limbs  of  those 
afflicted  with  disease,  the  object  being  to  remove  the 
cause  or  causes  of  trouble.6  "Osteopathy"  teaches 
neither  therapeutics,  materia  medica,  surgery,  nor 
bacteriology,  but  rests  entirely  upon  manipulation 
of  the  body  for  the  cure  of  disease.7  In  some  States, 
New  York  for  example,  doctors  of  osteopathy  are 
made  physicians  by  statute. 

1  State  v.  Beck,  21  R.  I.,  288.  *  Standard  Diet. 

*  Baker  v.  Hancock,  29  Ind.  App.,  456. 

4  City  of  Cherokee  ».  Perkins,  118  Iowa,  405. 

4  Annual  Encyclopedia  for  1900,  p.  554  (quoted  in   Parks  r.  State,  159 
Ind.,  211,  229;  64  N.  E.,  862). 

•  Little  v.  State,  60  N'ebr..  749,  751;  State  v.  Gravett,  65  Ohio  St.,  289. 

7  Nelson  v.  State  Board  of  Health,  22  Ky.  Law  Rep.,  438,  441 ;  57  S.  W.,  504; 
1 08  Ky.,  769. 


26  DEFINITIONS 

Midwifery. — Although  childbirth  is  not  a  disease, 
but  a  normal  function  of  women,  the  practice  of 
medicine  does  not  appertain  exclusively  to  disease, 
and  obstetrics  as  a  matter  of  common  knowledge  has 
long  been  treated  as  a  highly  important  branch  of 
the  science  of  medicine.1  The  midwife  is  a  female 
obstetrician.2 

Ophthalmology.  --  Ophthalmology  is  the  science 
which  treats  of  the  physiology,  anatomy,  and  diseases 
of  the  eye.3 

Oculist. — An  oculist  who  treats  diseases  of  the 
eye  comes  within  the  provision  of  a  statute  pro- 
hibiting the  practice  of  medicine  or  surgery  without 
a  license.4 

Optician. — An  optician  is  usually  understood  to 
be  a  person  who  manufactures,  sells,  repairs,  and 
dispenses  instruments  for  the  strengthening  and  pre- 
servation of  the  human  eye,  and  who  does  not  treat 
disease  or  operate  surgically.5  An  optician  who  merely 
fits  glasses  to  the  eyes  of  his  customers,  without  giving 
medical  or  surgical  treatment,  is  not  within  the  pur- 
view of  a  statute  against  the  practice  of  medicine  or 
surgery  by  unlicensed  persons.6 

Optometry. — Optometry  has  been  defined  by  the 
Utah  statutes  to  be  the  employment  of  subjective 
and  objective  mechanical  means  to  determine  the 
accommodative  and  refractive  conditions  of  the  eye 
and  the  scope  of  its  functions  in  general,  and  the 
application  and  adjustment  of  lenses  for  the  correc- 

1  People  v.  Arendt,  60  111.  App.,  89;  Com.  v.  Porn,  196  Mass.,  326. 

2  Com.  v.  Porn,  196  Mass.,  326. 

3  State  v.  Yegger,  19  S.  D.,  224;  103  N.  W.,  17. 

4  Com.  v.  St.  Pierre,  175  Mass.,  48. 
6  O'Neil  v.  State,  115  Tenn.,  436. 

8  Smith  v.  People,  92  111.  App.,  22. 


CHRISTIAN  SCIENCE  DEFINED  OR  EXPLAINED    27 

tion  of  errors  of  refraction,  the  relief  of  eye-strain, 
and  the  aid  of  vision.1 

Bone  Setter. — A  bone  setter  is  one  who  professes 
and  practises  bone  setting  in  dislocations  and  frac- 
tures, reducing  sprains,  swellings,  and  contractions  of 
the  sinews  by  friction  and  fomentation.2 

Christian  Science  Defined  or  Explained. — In  one 
of  the  late  cases  on  this  subject  the  court  said:  "What 
Christian  Science  is  we  do  not  know.  The  practice 
of  it  is  referred  to  by  its  followers  as  treatment," 
and  "if  its  followers  call  it  treatment,  they  ought 
not  to  be  heard  to  say  that  it  is  not.  "3  Its  adherents 
believe  that  matter  has  no  existence  except  as  a  mani- 
festation of  mind;  that  the  divine  mind  is  all-control- 
ling; that  the  human  mind,  by  becoming  clean  and 
purified,  can  to  a  degree  realize  and  employ  the  powers 
of  the  divine  mind;  that  all  sickness  and  bodily  ills 
are  merely  a  species  of  sin,  error  or  evil,  and  exist 
only  in  the  apprehension  of  the  human  mind,  and  are 
nowise  phenomena  of  matter;  thaj:  the  divine  mind 
has  the  same  power  to  relieve  one  of  such  sin  or  error, 
manifested  in  the  form  of  disease,  as  it  has  to  expel 
any  other  unclean  or  evil  thought,  and  that  the  human 
mind,  if  it  can  only  so  perfect  itself  as  to  partake  in 
sufficient  degree  of  the  omnipotence  of  the  divine 
mind,  also  will  be  able  to  throw  off  and  rid  itself  of 
disease.4  In  the  application  for  a  charter  by  a  Christian 
Scientist  society,  under  the  laws  of  Pennsylvania, 
the  purpose  was  stated  to  be,  "to  establish  and  main- 

1  State  r.  Gibson,  108  Pac.,  347. 

*  Hewitt  v.  Charier,  16  Pick  (Mass.),  353. 

*  State  v.  Marble,  72  Ohio  St.,  29. 

4  Matter  of  Brush,  35  Misc.,  695.  The  Supreme  Court  of  Rhode  Island, 
in  the  case  of  State  v.  Mylod,  20  R.  I.,  632,  holds  that  the  practice  of 
Christian  Science  is  not  the  practice  of  medicine. 


28  DEFINITIONS 

tain  a  place  of  worship  and  to  preach  the  Gospel 
according  to  the  doctrines  of  Jesus  Christ  as  found  in 
the  Bible  and  the  Christian  Science  text-book,  Science 
and  Health  with  Key  to  the  Scriptures,  by  Mary  Baker 
G.  Eddy.  The  master  found  that  the  church  was 
an  organization  not  only  for  the  purpose  of  worship, 
but  also  to  accomplish  the  cure  of  disease;  that  the 
fundamental  principle  of  the  teaching  was  that  disease 
had  no  real  existence  and  the  universal  remedy  was 
to  understand  and  believe  that  sickness  had  no  reality; 
that  the  healers  who  engaged  in  the  cure  of  disease 
by  prayer  were  constituted  by  the  readers  at  the 
different  churches,  and  it  was  the  common,  but  not 
universal,  practice  for  them  to  receive  compensation 
for  their  services.1 

Magnetic  Healing. — We  have  been  unable  to  find 
any  case  holding  that  magnetic  healing,  so-called,  is 
so  far  based  on  coordinated,  arranged,  and  system- 
atized knowledge  that  it  can  be  termed  a  science,  or 
that  any  considerable  degree  of  instruction  is  a  pre- 
requisite to  its  prosecution,  as  it  is  actually  practised 
by  those  whose  knowledge  does  not  go  beyond  the 
manifestation  of  the  phenomena  of  magnetism.  But 
it  has  been  held  that  one  holding  himself  out  as  a 
magnetic  healer,  and  whose  method  of  treatment  is, 
at  least  in  part,  the  method  that  medical  practitioners 
sometimes  employ,  is  engaged  in  the  practice  of  medi- 
cine.2 

Magic  Healers. — Magic  healers  are  those  who 
profess  to  heal  the  sick  by  magic,  psychic,  or  super- 
natural agency.3 


1  First  Church  of  Christ,  Scientist,  Philadelphia,  n  D.  R.,  573. 

2  Parks  v.  State,  159  Ind.,  225. 

3  Richardson  ».  State,  47  Ark.,  562;  2  S.  W.,  187. 


HYPNOTISM  20 

Hypnotism. — Hypnotism  is  a  peculiar  physiological 
condition  excited  by  perverted  action  of  certain  parts 
of  the  cerebral  nervous  organs,  and  is  not  caused 
by  any  occult  force  emanating  from  the  operator.1 
J.  G.  McKendrick,  professor  of  the  institute  of  medi- 
cine, University  of  Glasgow,  in  concluding  his  learned 
article  on  "Animal  Magnetism"  in  the  Encyclopedia 
Britannica,  says:  "Whilst  all  the  phenomena  cannot 
be  accounted  for,  owing  to  the  imperfect  knowledge 
we  possess  of  the  functions  of  the  brain  and  cord, 
enough  has  been  stated  to  show  that  just  in  propor- 
tion as  our  knowledge  has  increased  has  it  been  pos- 
sible to  give  a  rational  explanation  of  the  phenomena. 
It  is  also  clear  that  the  perverted  condition  of  the 
nervous  apparatus  in  hypnotism  is  of  a  serious  char- 
acter, and  therefore  that  these  experiments  should 
not  be  performed  by  ignorant  empirics  for  the  sake 
of  gain  or  with  a  view  of  causing  amusement."  Hyp- 
notism is  defined  by  W.  Xavier  Sudduth,  A.M., 
M.D.,  of  Chicago,  in  an  article  on  "Hypnotism  and 
Crime,"  in  13  Medico-Legal  Journal,  239,  to  be  in 
its  simpler  manifestations  a  modified  form  of  natural 
sleep  artificially  induced,  but  in  its  more  complex 
form  it  compares  with  abnormal  condition  of  sleep 
known  as  somnambulism. 

1  Parks  v.  State,  159  Ind.,  21 1,  226;  64  N.  E.,  862. 


CHAPTER    III 

WHO   MAY   PRACTISE   MEDICINE  AND 
SURGERY 

i.  CONSTITUTIONALITY  OF  STATUTES  REGULATING 
THE  PRACTICE  OF  MEDICINE 

(a)  In  General. — It  is  undoubtedly  the  right  of 
every  citizen  of  the  United  States  to  follow  any  law- 
ful calling,  business,  or  profession  he  may  choose,  sub- 
ject only  to  such  restrictions  as  are  imposed  upon 
all  persons  of  like  age,  sex,  and  condition.  This  right 
may  in  many  respects  be  considered  as  a  distinguish- 
ing feature  of  our  republican  institutions.  Here  all 
vocations  are  open  to  everyone  on  like  conditions. 
All  may  be  pursued  as  sources  of  livelihood,  some 
requiring  years  of  study  and  great  learning  for  their 
successful  prosecution.  The  interest  or,  as  is  some- 
times termed,  the  estate  acquired  in  them,  that  is, 
the  right  to  continue  their  prosecution,  is  often  of 
great  value  to  the  possessors,  and  cannot  be  arbi- 
trarily taken  from  them,  any  more  than  their  real  or 
personal  property  can  be  thus  taken.  But  there  is 
no  arbitrary  deprivation  of  such  right  where  its  exer- 
cise is  not  permitted  because  of  a  failure  to  comply 
with  conditions  imposed  by  the  State  for  the  protection 
of  society. 

The  power  of  the  State  to  provide  for  the  general 
welfare  of  society  authorizes  it  to  prescribe  all  such 
regulations  as,  in  its  judgment,  will  secure  or  tend 


STATUTES  REGULATING  PRACTICE  OF  MEDICINE     31 

to  secure  them  against  the  consequences  of  ignorance 
and  in  capacity  as  well  as  of  deception  and  fraud. 
As  one  means  to  this  end  it  has  been  the  practice  of 
different  States  from  time  immemorial  to  exact  in 
many  pursuits  a  certain  degree  of  skill  and  learning 
upon  which  the  community  may  confidently  rely, 
their  possession  being  generally  ascertained  upon  an 
examination  of  parties  by  competent  persons,  or 
inferred  from  a  certificate  to  them  in  the  form  of  a 
diploma  or  license  from  an  institution  established  for 
instruction  on  the  subjects,  scientific  or  otherwise, 
with  which  such  pursuits  have  to  deal.  The  nature 
and  extent  of  the  qualifications  must  depend  primarily 
upon  the  judgment  of  the  State  as  to  their  necessity. 
If  they  are  appropriate  to  the  calling  or  profession 
and  attainable  by  reasonable  study  or  application, 
no  objection  to  their  validity  can  be  raised  because 
of  their  stringency  or  difficulty. 

It  is  only  when  they  have  no  relation  to  such  call- 
ing or  profession,  or  are  unattainable  by  such  reason- 
able study  and  application,  that  they  can  operate  to 
deprive  one  of  his  right  to  pursue  a  lawful  vocation. 

Few  professions  require  more  careful  preparation 
by  one  who  seeks  to  enter  it  than  that  of  medicine. 
It  has  to  deal  with  all  those  subtle  and  mysterious 
influences  upon  which  life  and  health  depend,  and 
requires  not  only  a  knowledge  of  the  properties  of 
vegetable  and  mineral  substance,  but  of  the  human 
body  in  all  its  complicated  parts,  and  their  relation 
to  each  other,  as  well  as  their  influence  upon  the 
mind.  The  physician  must  be  able  to  detect  readily 
the  presence  of  disease,  and  prescribe  appropriate 
remedies  for  its  removal. 

Everyone  may  have  occasion  to  consult  him,  but 
comparatively  few  can  judge  of  the  learning  and 


32     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

skill  which  he  possesses.  Reliance  must  be  placed 
upon  the  assurance  given  by  his  license  issued  by  an 
authority  competent  to  judge  in  that  respect  that 
he  possesses  the  requisite  qualifications. 

Due  consideration,  therefore,  for  'the  protection 
of  society  may  well  induce  the  State  to  exclude  from 
practice  those  who  have  not  such  a  license,  or  who 
are  found  upon  examination  not  to  be  fully  qualified. 

The  same  reasons  which  control  in  imposing  con- 
ditions, upon  compliance  with  which  the  physician 
is  allowed  to  practise  in  the  first  instance,  may  call 
for  further  conditions  as  new  modes  of  treating  disease 
are  discovered,  or  a  more  thorough  acquaintance  is 
obtained  of  the  remedial  properties  of  vegetable  and 
mineral  substances,  or  a  more  accurate  knowledge  is 
acquired  of  the  human  system  and  of  the  agencies 
by  which  it  is  affected.1 

That  in  the  exercise  of  its  power  to  prescribe  reason- 
able regulations  upon  the  right  to  practise  medicine,  the 
legislature  may  require,  as  a  condition  of  the  right  to 
practice,  that  the  person  shall  procure  a  license,  may 

1  Mr.  Justice  Field  in  Dent  v.  West  Virginia,  129  U.  S.,  114. 

Medical  Statutes  Held  to  be  Valid  Exercise  of  Police  Power.  United  States — 
Dent  v.  West  Virginia,  129  U.  S.,  114.  Arkansas — State  v.  McCarry,  92 
S.  W.,  775;  Gosnell  v.  State,  52  Ark.,  228;  Thompson  v.  Lear,  77  Ark.,  506. 
California — Ex  parte  McNulty,  77  Cal.,  164.  Illinois — Williams  v.  People, 
121  111.,  84;  People  v.  Blue  Mountain,  129  111.,  370.  Indiana — State  v. 
Webster,  150  Ind.,  616.  Kansas — State  v.  Creditor,  44  Kan.,  565.  Kentucky 
— Driscoll  v.  Com.,  93  Ky.,  393.  Louisiana — Allopathic  State  Board  v.  Fowler, 
50  La.  Ann.,  1358.  Maryland — Scholle  v.  State,  90  Md.,  729.  Michigan- 
People  v.  Reetz,  127  Mich.,  87.  Minnesota — State  v.  Medical  Examiners, 
34  Minn.,  387.  Montana — State  v.  First  Judicial  Dist.  Ct.  Dept.,  No.  2,  26 
Mont.,  121.  Nebraska — Lincoln  Medical  College  v.  Poynter,  60  Nebr.,  228. 
Nevada — Ex  parte  Spinney,  10  Nev.,  323.  New  Mexico — In  re  Roe  Chung,  9 
N.  M.,  130.  New  York — People  v.  Fulda,  52  Hun.,  65.  Ohio — States.  Marble, 
72  Ohio  St.,  26.  Pennsylvania — Com.  v.  Wilson,  6  Pa.  Dist.,  628,  19  Pa.  Co. 
Ct.,  521;  Com.  v.  Finn,  n  Pa.  Super.  Ct.,  620.  Rhode  Island — State  Board 
of  Health  v.  Roy,  22  R.  I.,  538.  Texas — Dowdell  v.  McBride,  92  Tex.,  239. 
Utah — People  v.  Hasbrouck,  n  Utah,  291.  West  Virginia — State  v.  Dent, 
25  W.  Va.,  i.  Wisconsin — .State  v.  Currens,  in  Wis.,  431. 


STATUTES  REGULATING  PRACTICE  OF  MEDICINE     33 

designate  some  officer  or  board  to  issue  the  license, 
and  to  determine  whether  an  applicant  possesses  the 
qualifications  required  to  entitle  him  to  it;  and  may 
prescribe,  so  far  as  can  be  done  by  a  general  law, 
what  qualifications  shall  be  required,  and  how  the 
possession  of  them  by  the  applicant  shall  be  ascer- 
tained— necessarily  follows  from  the  power  itself. 
It  is  for  the  legislature,  and  not  for  the  courts,  to 
determine  those  things.  The  only  limit  to  the  legis- 
lative power  in  prescribing  conditions  to  the  right  to 
practise  in  a  profession  is  that  they  shall  be  reason- 
able— that  is,  whether  the  legislature  has  gone  beyond 
the  proper  limits  of  its  power  the  courts  must  judge. 
By  the  term  "reasonable"  we  do  not  mean  expedient, 
nor  do  we  mean  that  the  conditions  must  be  such  as 
the  court  would  impose  if  it  were  called  on  to  pre- 
scribe what  should  be  the  conditions.  They  are  to 
be  deemed  reasonable  where,  although  perhaps  not 
the  wisest  and  best  that  might  be  adopted,  they  are 
fit  and  appropriate  to  the  end  in  view,  to  wit,  the 
protection  of  the  public,  and  are  manifestly  adopted 
in  good  faith  for  that  purpose.  If  a  condition  should 
be  clearly  arbitrary  and  capricious;  if  no  reason  with 
reference  to  the  end  in  view  could  be  assigned  for  it; 
and  especially  if  it  appeared  that  it  must  have  been 
adopted  for  some  other  purpose — such  for  instance  as 
to  favor  or  benefit  some  person  or  class  of  persons 
—it  certainly  would  not  be  reasonable,  and  would 
be  beyond  the  power  of  the  legislature  to  impose.1 
Naturally  the  constitutionality  of  statutes  regulating 
the  admission  of  members  of  the  medical  profession 
has  frequently  been  questioned  and  passed  upon 
by  the  courts.  So  frequently  have  these  statutes 
been  challenged  that  we  have  contented  ourselves 

1  State  v.  Vendersluis,  42  Minn.,  129,  43  N.  W.,  789. 
3 


34     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

by  citing  the  foregoing  cases  to  the  proposition,  that 
it  has  universally  been  held  that  such  statutes  are  a 
valid  exercise  of  the  police  power  of  the  state,  infring- 
ing no  provision  of  either  Federal  or  State  Constitu- 
tions, as  to  constituting  a  taking  without  due  process 
of  law,  or  as  to  interfering  with  vested  rights,  neither 
have  they  been  held  to  violate  the  prohibition  against 
ex  post  facto  laws  nor  to  grant  exclusive  privileges 
and  emoluments  or  create  monopolies  and  perpetuities 
in  violation  of  the  constitution,  but  have  only  been 
held  invalid  where  they  contained  some  special  objec- 
tionable feature.1 

Thus  the  legislature  may  recognize  one  school 
without  recognizing  all,  if  the  recognition  be  in  the 
exercise  of  the  proper  classification  and  for  the  public 
welfare,  and  not  with  a  view  to  create  a  monopoly 
in  the  schools  recognized,  or  a  discrimination  against 
other  schools.2  For  example,  permitting  the  licensing 
of  osteopaths,  while  excluding  mental  healing,  is  not 
an  unlawful  discrimination  which  will  render  the 
statute  void.3  And  an  act  regulating  the  practice  of 
medicine  is  not  void  as  discriminating  against  Christian 
Scientists  in  that  it  prescribes  that  anyone  possessing 
certain  qualifications  may  practise  osteopathy,  and 
does  not  make  special  provision  for  those  who  wish 
to  practise  Christian  Science.4  It  has  been  held  in  a 
late  Ohio  case  that  a  legislative  enactment  which  dis- 
criminates against  osteopathists  by  requiring  them  to 
hold  diplomas  from  a  college  which  requires  four  years 
of  study,  as  a  condition  to  their  obtaining  limited 

1  Hawker  v.  N.  Y.,  170  U.  S.,  189;  Reetz  v.  Michigan,  188  U.  S.,  505;  Meffert 
v.  Racker,  195  U.  S.,  625;  Decie  v.  Brown,  167  Mass.,  290. 

2  Parks  v.  State,  159  Ind.,  211;  State  ex  rel.  Kellog  v.  Currens  et  al.,  in 
Wis.,  431;  State  v.  Marble,  72  Ohio  St.,  21;  Scholle  v.  State,  90  Md.,  729. 

3  Parks  v.  State,  159  Ind.,  21 1 ;  64  N.  E.,  862. 

4  State  v.  Marble,  72  Ohio  St.,  21;  73  N.  E.,  1063. 


STATUTES   REGULATING  PRACTICE  OF  MEDICINE    35 

certificates  which  will  not  permit  them  to  prescribe 
drugs  or  perform  surgery,  while  not  requiring  such 
time  of  study  from  those  contemplating  the  regular 
practice  as  a  condition  to  their  obtaining  unlimited 
certificates  for  the  practice  of  medicine  and  surgery, 
is  as  to  such  discrimination  void,  and  compliance 
therewith  cannot  be  exacted  of  those  who  practise 
osteopathy.1  But  the  same  court  has  held  that  a 
statute  making  the  giving  of  Christian  Science  treat- 
ment for  a  fee  a  misdemeanor,  is  not  an  interference 
with  the  rights  of  conscience  and  of  worship  conserved 
by  the  Ohio  Bill  of  Rights,  section  7,  and  is  not,  on 
that  ground,  unconstitutional.2  And  it  has  been  held 
in  Massachusetts  that  no  constitutional  rights  are 
infringed  by  including  midwifery  in  the  provisions 
of  a  statute  requiring  a  license  to  practise  medicine.3 

(b)  Statutes  Requiring  Good  Moral  Character.— 
The  physician  is  one  whose  relations  to  life  and  health 
are  of  the  most  intimate  character.  It  is  fitting  not 
merely  that  he  should  possess  a  knowledge  of  diseases 
and  their  remedies,  but  also  that  he  should  be  one 
who  may  be  safely  trusted  to  apply  those  remedies. 
Character  is  as  important  a  qualification  as  knowledge, 
and  if  the  legislature  may  properly  require  a  definite 
course  of  instruction,  or  a  certain  examination  as  to 
learning,  it  may  with  equal  propriety  prescribe  what 
evidence  of  good  character  shall  be  furnished.4 

As  was  said  by  the  court  in  a  Minnesota  case:  "The 
legislature  has  surely  the  same  power  to  require,  as 
a  condition  of  the  right  to  practise  this  profession, 

1  State  v.  Gravett,  65  Ohio  St.,  289. 

1  State  r.  Marble,  72  Ohio  St.,  21 ;  73  N.  E.,  1063. 

1  Commonwealth  v.  Porn,  196  Mass.,  326. 

4  Hawker  ».  New  York,  170  U.  S.,  189;  Dent  v.  West  Virginia,  129  U.  S., 
114,  122;  Eastman  v.  State,  109  Indiana,  278;  State  v.  Hathaway,  115  Mo., 
36,  47;  State  v.  Call,  N.  C.,  28  S.  E.,  517;  Wert  v.  Clutter,  37  Ohio  St.,  347. 


36     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

that  the  practitioner  be  possessed  of  the  qualifications 
of  honor  and  good  moral  character,  as  it  has  to  require 
that  he  shall  be  learned  in  the  profession;"1  and  by 
the  court  in  Thompson  v.  Hazen:  "Its  authors  were 
careful  that  human  health  and  life  should  not  be 
exposed  without  some  restraint,  by  being  committed 
to  the  charge  of  the  unprincipled  and  vicious. 
It  could  not  have  been  intended  that  persons  destitute 
of  the  moral  qualifications  required  should  have  the 
opportunity  to  enter  professionally  the  families  of 
the  worthy  and  unsuspecting,  and  be  admitted  to 
the  secrets  which  the  sick  chamber  must  often  entrust 
to  them."2 

(c)  Exemptions  of  Consultants  from  Other  States.— 
In  the  majority  of  States  statutes  have  been  exacted 
expressly   excepting   legally   qualified    physicians   and 
surgeons  from  other  States  from  the  operation  of  their 
License    Laws,    while    in    consultation    with    resident 
physicians.3    These  statutes  have  been  held  not  to  be 
unconstitutional  as  abridging  the  privileges  and  immu- 
nities of  citizens  of  the  United  States  or  of  the  several 
States.4 

(d)  Statutes  Forbidding  Soliciting  of  Patronage.— 
The  State  may,  under  its  police  power,  forbid  drum- 
ming or  the  soliciting  of  patronage  for  any  medical 
practitioner   on   the   trains   or   at   the   depots   of  any 
common    carrier    in    the    State,    without    unconstitu- 
tionally restricting  the  liberty  of  citizens,  or  depriving 
them  of  the  equal  protection  of  the  laws.5    The  courts 
in  setting  forth  their  reasons  for  so  holding  say:     "A 
physician  who  has  secured  a  patient  by  means  of  a 

1  State  v.  State  Medical  Examining  Board,  32  Minn.,  324. 

2  Thompson  v.  Hazen,  25  Maine,  104,  108. 

3  See  the  Medical  Acts  of  the  several  States. 

4  France  v.  State,  57  Ohio  St.,  i. 
6  Williams  v.  State,  85  Ark.,  464. 


STATUTES  REGULATING  PRACTICE  OF  MEDICINE    37 

hired  agent  has  paid  out  a  certain  sum  to  obtain  his 
patient,  and  is  under  a  strong  temptation  to  put  him 
through  a  course  of  treatment,  whether  he  needs  it 
or  not,  in  order  to  get  his  money  back  and  make  a 
profit  on  his  investment.  And  therein  lies  the  danger 
to  the  public  from  such  a  practice."1 

(e)  Statutes  Authorizing  a  Professional  Tax. — The 
legislatures  of  the  several  States  may  confer  upon  the 
municipalities  of  the  State  the  right  to  tax  physicians 
practising  therein,  provided  the  constitution  has  not 
specially  stipulated  otherwise.2  Village  trustees  may 
for  the  purpose  of  raising  revenue  lawfully  enact  an 
ordinance  levying  a  tax  upon  the  occupation  of  prac- 
tising medicine  within  the  village  limits.3  And  it 
has  been  held  that  debt  lies  against  the  physician  for 
the  professional  tax.4  So  too  itinerant  physicians  are 
frequently  required  to  pay  an  occupation  tax. 

(/)  Statutes  Requiring  a  Report  of  Contagious 
Diseases. — Statutes  and  ordinances  imposing  the  duty 
upon  a  physician  of  reporting  to  the  proper  officer 
all  cases  of  diseases  dangerous  to  the  public  health, 
which  they  are  called  upon  to  treat  have  been  held 
constitutional  in  nearly  every  instance.5 

(g)  Statutes  Requiring  a  Report  of  Births  and 
Deaths. — A  statute  requiring  physicians  to  report  to 
the  proper  official  births  and  deaths  which  may  come 
under  their  supervision,  and  imposing  a  penalty  for  a 
failure  to  do  so  is  constitutional.6 

(h)  Prohibiting  the  Practice  of  Medicine  by  Persons 
Convicted  of  a  Felony. — This  is  not  to  be  regarded  as 

1  Thompson  v.  Van  Lear  (Ark.),  92  S.  W.,  773. 

1  See  statutes  of  the  several  States,  also  State  p.  Edmunds,  127  Iowa,  333; 
State  P.  Hibbard,  3  Ohio,  63. 
*  Dodge  P.  Guidinger  (Nebr.),  127  N.  W.,  122. 
«  State  P.  Proudfit,  3  Ohio,  63. 

5  State  P.  Wordin,  56  Conn.,  216;  People  P.  Brady,  90  Mich.,  459. 

6  Robinson  p.  Hamilton,  60  Iowa,  134. 


38     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

the  mere  imposition  of  an  additional  penalty  for  the 
conviction,  but  as  prescribing  the  qualifications  for 
the  duties  to  be  discharged  and  the  position  to  be  filled, 
and  naming  the  appropriate  evidence  therefor.1 


2.  REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE 

(a)  In  General. — It  not  being  our  intention  in 
writing  this  work  to  collate  the  various  laws  in  the 
different  States  prescribing  the  qualifications  necessary 
to  entitle  one  to  begin  the  practice  of  medicine  and 
surgery  within  their  respective  States,  we  shall  content 
ourselves  by  stating  in  a  general  way  the  qualifica- 
tions prescribed  by  the  majority  of  the  States,  leaving 
to  the  reader  to  ascertain  for  himself  what  the  legisla- 
ture in  his  own  particular  State  has  said  and  done  in 
this  regard.  For  as  has  been  said  by  a  noted  jurist: 
"Some  fool  legislature  might  come  along  and  repeal 
the  contents  of  my  book." 

The  majority  of  the  States  at  the  present  time 
require  the  candidate  for  admission  to  practise  to 
present  a  diploma  from  a  medical  college  of  good 
standing  and  to  pass  a  satisfactory  examination  before 
a  board  of  examiners.  Many  of  these  statutes  specify 
the  subjects  on  which  the  applicant  for  examination 
must  be  examined.  And  in  some  States  the  legisla- 
ture has  specified  the  length  of  the  course  of  study 
in  a  medical  college  necessary  to  entitle  the  applicant 
to  an  examination.  In  other  States  a  diploma  from 
a  medical  college  is  not  required,  as  in  Arkansas  and 
West  Virginia,  where  the  candidate  needs  only  to 
pass  a  satisfactory  examination.  While  in  a  few  of 
the  States  the  candidate  has  his  choice  of  presenting 

1  Hawker  v.  New  York,  170  N.  S.,  189. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    39 

an  acceptable  diploma  or  taking  an  examination; 
New  Mexico  furnishes  an  example  of  the  latter  class. 
Still  other  States  are  so  lenient  as  to  only  require  the 
applicant  to  hold  a  diploma  from  a  medical  college 
in  good  standing.  It  is  common  in  laws  regulating 
the  medical  profession  and  prescribing  qualifications 
to  be  possessed  by  those  entering  upon  them,  to 
exempt  those  already  engaged  in  them  from  showing 
any  qualifications  other  than  the  fact  that  such  persons 
are  already  so  engaged  or  have  been  so  engaged  for 
a  certain  time.  And  it  has  been  held  that  such  a 
provision  is  not  such  a  discrimination  as  violates  any 
constitutional  right  of  those  seeking  to  enter  the 
medical  profession.1  Penalties  are  imposed  by  these 
statutes,  as  a  general  rule,  upon  persons  practising 
without  having  complied  with  the  requirements  of 
the  statute.  A  medical  board  of  examiners  may 
prescribe  reasonable  rules  and  regulations  for  the 
conduct  of  its  work.2 

(b)  What  Constitutes  a  School  of  Medicine.— 
(i)  In  General. — To  constitute  a  school  of  medicine 
it  must  have  rules  and  principles  of  practice  for  the 
guidance  of  all  its  members  as  respects  principles, 
diagnosis,  and  remedies,  which  each  member  is  sup- 
posed to  observe  in  a  given  case.  Thus  any  competent 
practitioner  of  any  given  school  would  treat  a  given 
case  substantially  the  same  as  any  other  competent 
practitioner  of  the  same  school  would  treat  it.  One 
school  may  believe  in  the  potency  of  drugs  and  blood- 
letting, and  another  may  believe  in  the  principle 
similia  similibus  curantur;  still  others  may  believe  in 
the  potency  of  water,  or  of  roots  and  herbs;  yet  each 

1  In  re  Christensen,  59  Wash.,  320. 

J  Illinois  State  Board  v.  People,  123  111.,  227;  State  v.  Miller,  146  Iowa, 
521;  State  v.  Medical  College,  60  Ohio  St.,  122;  Barmore  v.  Board,  21  Or., 
301 ;  28  Pac.,  8;  State  v.  Chittenden,  127  Wis.,  468;  107  N.  W.,  500. 


40     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

school  has  its  own  peculiar  principles  and  rules  for 
the  goverment  of  its  practitioners  in  the  treatment  of 
diseases.1 

Where  the  law  provides  that  the  possession  of  a 
diploma  of  a  reputable  medical  school  or  a  medical 
school  in  good  standing  shall  be  a  requisite  to  the 
issuance  of  a  license  by  the  Medical  Board,  such  board 
undoubtedly  has  the  power  to  decide  what  is  a  reputable 
medical  college  or  a  college  in  good  standing.  This 
is  purely  a  matter  within  the  discretion  of  the  board 
and  its  decision  as  to  whether  or  not  a  medical  school 
is  in  good  standing  is  final  and  cannot  be  reviewed 
by  the  courts  unless  there  is  evidence  of  a  plain  abuse 
of  such  discretion.  The  burden  of  proving  that  a 
medical  school  is  "reputable"  or  "in  good  standing" 
is  on  the  person  applying  for  a  license  and  resting 
his  claim  thereto  upon  a  diploma  issued  by  what  he 
claims  is  a  medical  college  in  good  standing. 

Summing  it  all  up  in  one  sentence  the  applicant 
must  bring  himself  within  all  the  provision  of  the 
"Medical  Act"  in  his  State. 

(2)  Osteopathy. — Osteopathy  is  a  school  of  practice 
distinct    from    other    medical    schools.2      Where    the 
Public  Health  Law  provides  that  in  order  to  obtain 
a  license  to  practice  osteopathy  a  person  must  be  a 
graduate  in  good  standing  of  a  "regularly  conducted 
school  or  college  of  osteopathy,"   it  means  that  the 
school  must  be  conducted  in  conformity  with  laws  of 
the  place  where  it  is  located  and  not  merely  that  it 
holds»regular  sessions.3 

(3)  Clairvoyance. — Not  so,  however,  with  clairvoy- 
ance practice.     True,  the  practice  has  but  one  mode 

1  Nelson  v.  Harrington,  72  Wis.,  591 ;  40  N.  W.,  228. 

2  Wilkins'  Admr.  v.  Brock  &  Rosselle,  80  Vt.,  332. 

3  People  ex  rel.  Scott  v.  Reid,  135  App.  Div.,  89. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    41 

of  ascertaining  what  the  disease  is  and  the  remedy 
therefor,  viz.,  the  voluntary  going  into  a  sort  of  trance 
condition,  and  while  in  such  condition  to  give  a 
diagnosis  of  the  case  and  prescribe  for  the  ailment  of 
the  patient  thus  disclosed.  But  the  mode  in  which 
a  physician  acquires  a  knowledge  of  his  profession 
has  nothing  to  do  with  his  school  or  practice.  This 
is  the  difference  between  clairvoyant  physicians  as 
a  class  and  the  practitioners  of  a  school  or  system 
of  medical  practice  recognized  in  the  general  rule  of 
professional  ability  above  shown.1 

(c)  Necessity  of  License  or  Certificate. — As  has 
been  said  before  most  of  the  States  now  require  that 
a  person  desiring  to  practise  medicine  must  apply 
for  and  receive  a  license  or  certificate  from  the  State 
board  of  medical  examiners.  In  former  years  no 
license  or  certificate  was  required  of  a  person  who 
undertook  to  practise  medicine,  but  it  became  such  an 
every-day  occurrence  that  people  who  were  afflicted 
with  disease,  purchased  and  swallowed  all  sorts  of 
nostrums,  because  some  quack  had  recommended  it, 
that  the  public  became  concerned  and  this  salutary 
legislation  was  enacted.  A  license  and  a  certificate 
have  been  held  not  to  be  the  same  thing.2  In  some 
States  a  physician  or  surgeon  must  procure  a  license 
in  each  county  where  he  practises.3 

In  Ege  v.  Commonwealth,  9  Atl.,  171,  a  physician 
was  found  guilty  of  violating  a  statute  that  required 
physicians  to  register  in  the  county  "in  which  he  or  she 
resides  or  sojourns."  The  accused  was  registered  in  a 
certain  county  where  he  resided,  but  went  at  regular 

1  Nelson  r.  Harrington,  72  Wis.,  591 ;  40  N.  W.,  228. 
*  Nelson  ».  State,  97  Ala.,  79;  12  So.,  421. 
1  Orr  ».  Meek,  in  Ind.,  40;  n  N.  E.,  787. 


42     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

intervals  to  another  county  for  the  purpose  of  seeing 
patients  who  had  consulted  him  in  the  county  of  his 
residence  and  to  attend  patients  who  called  upon  him 
in  the  latter  county  for  the  first  time. 

A  person  may  practice  medicine  without  a  license 
when  acting  gratuitously  and  in  case  of  emergency 
in  which  the  ordinary  and  qualified  practitioners  are 
not  readily  obtainable.  But  an  emergency  is  not 
created  by  the  fact  that  regular  physicians  have  given 
up  the  case  as  incurable.1 

Necessity  of  Prior  Practitioners  Securing  License.— 
A  person  who  has  been  practising  medicine  as  a 
physician  for  a  number  of  years  without  objection  is 
not  exempt  from  complying  with  legislation  of  a  later 
date,  making  it  a  condition  precedent  to  anyone's 
practising  medicine  that  he  should  have  been  examined 
by  a  medical  examining  board  and  found  to  have 
the  qualifications  required  by  law  for  so  doing.2 
Thus,  one  who  had  many  years  previously  been 
engaged  in  the  practice  of  medicine  within  a  State, 
which  he  subsequently  left,  is  not,  upon  returning  to 
the  State,  deprived  of  a  vested  right  by  being  required 
to  comply  with  the  registration  law  as  a  condition  to 
resuming  such  practice,  especially  where  his  former 
practice  had  not  been  conducted  in  accordance  with 
the  laws  of  the  State.3 

Medical  laws  in  Alabama,  Idaho,  Iowa,  North 
Carolina,  Kansas,  Nevada,  Ohio,  Pennsylvania,  Rhode 
Island,  and  Texas  exempt  from  their  operation  those 
who  have  practised  in  the  State  for  a  prescribed  time 

1  State  v.  Paul,  56  Neb.,  369. 

2  Allopathic  State  Board  of  Medical  Examiners  v.  Fowler,  50  La.  Ann., 
1358;  24  So.,  809;  People  v.  Fulda,  52  Hun.  (N.  Y.),  65;  State  v.  Gravett, 
65  Ohio  St.,  289;  62  N.  E.,  325. 

3  State  v.  Davis,  194  Mo.,  485;  92  S.  W.,  484. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    43 

previous  to  the  passage  of  the  act,1  but  the  appli- 
cant must  have  been  in  practice  at  the  time  of  the 
passage  of  the  act,2  and  evidence  that  he  had  practised 
medicine  prior  to  the  passage  is  insufficient.3  The 
medical  acts  of  most  of  the  States  except  from  their 
operation  those  who  may  be  called  for  a  special  case 
from  another  State. 

(d)  Sufficiency  of  License. — A  license  or  certificate  to 
practise  must  be  indorsed  and  countersigned  by  the 
officer  authorized   by   statute   in   order   to   be  valid,4 
and  it  has  been  held  that  neither  a  certificate  from 
a  medical  school  in  Prussia  that  the  defendant  had 
there  passed  a  limited  course  of  study,  nor  a  com- 
mission,   after    examination    therefor,    as    a    medical 
officer  in  a  regiment  in  the  volunteer  army,  is  a  license 
from  some  chartered  school,  State  board  of  medical 
examiners,  or  medical  society.5     But  it  has  been  held 
that  the  certificate  or  licenses  granted  by  a  de  facto 
board    of    medical    examiners,    who    were    irregularly 
appointed,    were    sufficient    to    protect    the    physician 
to    whom     they    were    issued  « from    prosecution    for 
practising  without  a  license.6 

(e)  Who   May  Issue. — The  general  assemblies  and 
legislatures  of  the  several  States,  having  the  authority 

1  Alabama — Harrison  p.  State,  102  Ala.,  170.  Idaho — State  r.  Cooper,  n 
Ida.,  219,  81  Pac.,  374.  Iowa — State  v.  Mosher,  78  Iowa,  321.  Kansas — 
State  v.  Creditor,  44  Kan.,  565.  Nevada — Ex  parte  Spinney,  10  Nev.,  323. 
North  Carolina— State  v.  Hicks,  143  N.  C.,  689.  Ohio— State  v.  Medical 
Board,  60  O.  S.,  21.  Pennsylvania — Com.  v.  Gibson,  7  Pa.  Dist.,  386.  Rhode 
Island — Paquin  v.  State  Board  of  Health,  19  R.  I.,  365.  Texas — Hilliard  v. 
State,  7  Tex.  App.,  69. 

1  Sherburne  P.  Board  of  Examiners,  13  Idaho,  105;  Hart  v.  Folsom,  70 
N.  H.,  213. 

'  Hart  v.  Folsom,  70  N.  H.,  213:  47  Atl.,  603. 

4  Brooks  r.  State,  146  Ala.,  153;  41  So.,  156;  Nicholson  p.  State,  100  Ala., 
132;  14  So.,  746. 

&  People  v.  Fulda,  52  Hun.  (N.  Y.),  65. 

8  Brown  p.  People,  n  Colo.,  109;  17  Pac.,  104. 


44     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

to  require  as  a  condition  precedent  to  the  right  or 
privilege  of  one  to  practise  medicine,  that  he  should 
be  subjected  before  doing  so  to  a  prior  examination  as 
to  his  qualifications  and  found  and  declared  worthy 
and  qualified,  has  the  right  to  select  the  particular 
agency  to  whom  should  be  delegated  that  duty.1 

(/)  Authority  of  Medical  Boards  to  Refuse  License.— 
Boards  of  medical  examiners  are  usually  empowered 
to  refuse  certificates  to  persons  guilty  of  unprofes- 
sional or  immoral  conduct,  but  an  applicant  who  has 
paid  his  fees  and  who  possesses  all  the  requisite  medical 
qualifications  cannot  be  denied  a  license  without  a 
hearing.2 

(g)  Registration  of  License. — The  statutes  of  a  great 
many  of  the  States  require  that  physicians  and  sur- 
geons must  register  their  license  or  certificate  with 
some  designated  officer.  These  requirements  are 
mandatory.  Of  course,  these  statutes  usually  make 
exceptions  of  physicians  registered  under  a  former 
law  and  vary  in  their  provisions  as  to  the  place  where 
and  the  officer  with  whom  the  license  must  be  registered. 
Some  provide  that  it  shall  be  registered  in  the  county 
where  the  person  to  whom  it  is  issued  resides,  and 
some  that  it  shall  be  registered  in  the  county  where  he 
expects  to  practise.  Registration  after  the  time  pre- 
scribed by  the  statute  is  useless  as  a  defence  to  a 
prosecution  under  the  act.3  Under  a  statute  requiring 
a  physician  to  register  in  the  county  of  his  domicile, 
he  must  register  in  every  county  that  he  moves  into; 
but  under  a  statute  similar  to  the  New  York  statute, 
which  requires  one  to  be  registered  in  a  book  kept 
in  the  clerk's  office  of  the  county  where  such  practice 

1  Board  of  Medical  Examiners  v.  Fowler,  50  La.  Ann.,  1358. 

2  State  v.  State  Medical  Examining  Board,  32  Minn.,  324. 

3  Commonwealth  v.  Densten,  217  Pa.,  423. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    45 

is  to  be  carried  on,  a  physician  who  is  duly  registered 
in  and  practising  in  one  county  is  not  required  to 
register  in  another  so  that  he  may  visit  patients  there.1 

One  whose  registration  is  illegal  because  of  un- 
intentional mistake  or  omission,  may  validate  the  same 
by  a  subsequent  legal  registration  from  the  date  of 
the  filing  of  the  original.  For  example:  A  physician 
who,  in  consequence  of  the  fact  that  the  registra- 
tion official  did  not  have  a  book  in  which  he  could 
register,  did  not  succeed  in  doing  so,  but  who  was 
called  in  to  attend  a  patient,  and  did  practise,  can 
recover  his  fees  therefor,  it  appearing  that  he  registered 
so  soon  as  the  book  was  obtained  by  the  clerk  and 
as  soon  as  by  writ  of  mandamus  the  clerk  could  have 
been  made  to  furnish  the  book  of  registry.  The  court 
in  rendering  the  foregoing  opinion  gave  for  the  reason 
for  so  holding  that  "the  doctor's  only  remedy  in 
this  case  was  by  mandamus  to  make  the  clerk  furnish 
the  book;  but  that  would  take  time,  and  he  could 
not  have  registered  a  moment  sooner.  Suppose  he 
was  needed  to  set  a  limb  or  to  perform  a  surgical 
operation  to  save  life,  is  he  to  wait  on  a  neglectful 
clerk  until  he  gets  a  book?  We  think  not."2 

Another  example  where  failure  to  register  a  certifi- 
cate or  license  according  to  law  is  not  fatal,  is  where 
a  physician  files  his  certificate  with  the  wrong  official.3 

It  has  been  held  in  Pennsylvania  that  a  medical 
register  is  a  public  record  over  which  the  court  in 
charge  of  whose  office  it  is  put  has  summary  power 
of  correction  or  cancellation  on  its  own  motion  or  the 
suggestion  of  anyone.4 


1  Martin  v.  Kirk,  55  Hun.  (N.  Y.),  474. 

1  Parish  v.  Foss,  75  Ga.,  439. 

*  Mayor  of  New  York  v.  Bigelow,  13  Misc.  (N.  Y.),  42. 

4  In  matter  of  Campbell,  197  Pa.,  581. 


46      WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

(h)  Conclusiveness  of  Medical  Board's  Decision. — 
The  laws  of  the  several  States  on  this  subject  usually 
contain  a  provision  authorizing,  either  an  appeal 
or  by  way  of  review,  from  the  decision  of  the  medical 
board  in  refusing  or  in  revoking  licenses  to  practise.1 
When  the  right  to  appeal  is  granted  in  "all  cases  of 
the  refusal  or  revocation  of  a  certificate  by  the  medi- 
cal board,  the  right  exists  as  well  where  a  certificate 
to  practise  medicine  has  been  refused  for  incompetency 
as  where  it  has  been  refused  for  unprofessional  or 
immoral  conduct.  The  law  usually  provides  the 
manner  of  taking  this  appeal,  but  failure  to  do  so 
does  not  affect  the  right.2 

he  statute  of  Rhode  Island  expressly  provides  for 
appeal  from  the  decision  of  a  State  board  of 
health  to  the  appellate  division  of  the  State  Supreme 
Court  upon  the  revocation  of  a  license.  This  is  held 
to  provide  due  process  of  law,  though  no  trial  by 
jury  could  be  secured  under  it.3  Mandamus  is  the 
remedy  when  a  board  of  examiners  arbitrarily  refuse 
an  application  for  a  certificate  to  practise,4  or  to 
compel  the  issuance  of  a  license.5 

(i)  Authority  to  Revoke  License. — The  State,  in 
the  exercise  of  its  police  power,  in  the  interest  of  the 
health,  good  government,  general  welfare,  and  morals 
of  the  people,  may  prescribe  the  qualifications  of 
persons  desiring  to  practise  medicine,  and  may  create 
a  board  whose  duty  it  is  to  hear  and  determine  any 
complaint  made  against  any  person  holding  a  physi- 
cian's license,  and  revoke  such  license  for  any  cause 
provided  for  in  the  statute;  such  board  while  so  act- 

1  See  the  statutes  of  the  several  States. 

2  State  v.  Dist.  Ct.,  19  Mont.,  501;  48  Pac.,  1104. 

3  State  Board  of  Health  v.  Roy,  22  R.  I.,  538;  48  Atl.,  802. 

4  Harding  v.  People,  10  Colo.,  387. 

6  People  ».  Reid,  135  App.  Div.,  89. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    47 

ing  is  not  a  judicial  tribunal,  and  is  not  governed  by 
the  technical  rules  applicable  to  law  courts.  In  the 
absence  of  fraud,  corruption,  or  oppression  the  find- 
ings of  the  board  are  conclusive  upon  the  court.1 

The  authority  of  a  State  medical  board  to  grant  or 
refuse  license  to  applicants  is  quasi  judicial,  involving 
the  exercise  of  judgment  and  discretion;2  therefore 
being  authorized  by  statute  it  cannot  be  prevented 
by  a  writ  of  prohibition.3 

(j)  Grounds  for  Revocation  of  License  to  Practise.— 
(i)  In  General. — The  right  to  practise  the  profession 
of  medicine,  when  regularly  obtained  by  compliance 
with  the  law,  becomes  a  valuable  privilege  or  right 
in  the  nature  of  property,  and  is  safeguarded  by  the 
principles  that  apply  in  the  protection  of  property 
lawfully  acquired,  and  these  are  of  the  same  general 
nature,  though  not  in  all  particulars,  as  those  which 
safeguard  one  prosecuted  for  the  commission  of  a 
minor  offence. 

The  police  power  of  every  State  warrants  the  require- 
ments of  the  possession  of  all  reasonable  qualifications 
by  those  who  seek  to  engage  in  the  public  practice 
of  medicine,  and,  incidentally,  the  extension  of  a  wide 
discretion  to  those  agencies  charged  with  the  duty  of 
inquiry  and  determination;  but  the  exercise  of  the 
same  wide  discretion  cannot  be  extended  to  a  case 
where,  when  one  has  been  regularly  admitted,  the 
revocation  of  his  license  is  sought  under  another  and 
independent  provision  of  the  statute.4  In  some  of 

1  Meffert  v.  Packer,  66  Kan.,  710;  affirmed  in  195  U.  S.,  625;  State  v. 
Medical  Examiners,  34  Minn.,  387;  26  N.  W.,  126. 

1  People  v.  Illinois  State  Board  of  Examiners,  no  111.,  180;  Meffert  ». 
Packer,  66  Kan.,  710;  72  Pac.,  247;  Brown  v.  Grenier,  73  N.  H.,  426;  62  Atl., 
590;  People  v.  Reid,  135  App.  Div.,  89. 

1  State  v.  State  Board  of  Medical  Examiners,  34  Minn.,  387. 

4  Czarra  v.  Board  of  Medical  Supervisors  of  District  of  Columbia,  25 
App.  D.  CM  443. 


48     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

the  statutes  the  grounds  on  which  the  license  may 
be  revoked  are  specifically  set  out  in  the  statute.  In 
others  the  grounds  of  revocation  are  not  set  out  in 
detail,  but  it  is  provided  that  it  may  be  revoked  for 
unprofessional  conduct. 

(2)  Unprofessional  or  Dishonorable  Conduct. — "  Un- 
professional and  dishonorable  conduct,"  for  which 
a  statute  authorizes  the  revocation  of  a  license  that 
has  been  regularly  obtained,  is  not  defined  by  the 
common  law,  and  the  words  have  no  common  or 
generally  accepted  signification.  What  conduct  may 
be  of  either  kind  remains,  as  before,  a  mere  matter 
of  opinion.  In  the  absence  of  some  specification  of 
acts  by  the  law-making  power,  which  is  alone  author- 
ized to  establish  the  standard  of  honor  to  be  observed 
by  persons  who  are  permitted  to  practise  the  profes- 
sion of  medicine,  it  must,  in  respect  of  some  acts  at 
least,  remain  a  varying  one,  shifting  with  the  opinions 
that  prevail  from  time  to  time  in  the  several  tribunals 
that  may  be  called  upon  to  interpret  and  enforce 
the  law.  As  was  said  by  the  Supreme  Court  of  the 
United  States  in  a  case  involving  the  same  principle, 
the  question  must  be  reduced  to  one  of  fact,  as 
contradistinguished  from  mere  opinion.1 

Thus  so  much  of  an  act  of  Congress  as  authorized 
the  Board  of  Medical  Supervisors  of  the  District  of 
Columbia  to  revoke  the  license  of  a  medical  prac- 
titioner upon  conviction  of  "unprofessional  or  dis- 
honorable conduct"  independently  of  other  offences 
for  which  a  license  may  be  revoked  was  held  void 
for  uncertainty,2  and  likewise  a  statute  in  Kentucky 
authorizing  the  State  Board  of  Health  to  revoke  a 
physician's  license  for  grossly  unprofessional  conduct 

1  American  School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S.,  94. 

2  Czarra  v.  Board  of  Medical  Supervisors,  25  App.  D.  C.,  443. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    49 

likely  to  deceive  or  defraud  the  public,  without  fixing 
any  standard  by  which  such  fact  should  be  determined 
was  held  void.1  It  has  been  held  in  State  v.  Medical 
Board,  32  Minn.,  324,  that  "unprofessional"  means 
"dishonorable"  and  does  not  refer  to  matters  of 
professional  ethics  only;  and  that  a  mere  breach  of 
professional  ethics,  such  as  advertising,  etc.,  is  not 
ground  for  revoking  a  license. 

(3)  Procuring    Abortions. — If    "the    procuring,    or 
aiding  or  abetting  in  procuring,  a  criminal  abortion" 
is  not  "unprofessional  or  dishonorable  conduct"  in  one 
holding  a  certificate  entitling  him  to  practise  medicine 
then  we  are   unable  to   conceive   of  any  conduct   of 
which  such   person   might   be  guilty  which   could   be 
called   unprofessional  or  dishonorable.2 

(4)  Gross  Immorality. — The  revocation  of  the  license 
of  a  person  to  practise  medicine  and  surgery  on  the 
ground   of  immorality   has   been   held   valid   under  a 
statute  prescribing  the  qualifications  of  a  physician, 
and  prescribing  the  grossly  immoral,  and  authorizing 
the  cancellation  of  any  certificate  issued  to  such  per- 
sons;3 and  a  statute  authorizing  a  medical   board  to 
revoke  a  physician's  license  when  the  holder  has  been 
guilty  of  a   felony   or  of  gross  immorality  does  not 
violate  the   provisions  of   the  State  or  Federal   Con- 
stitutions.4 

(5)  False  Statements  and  Promises. — Statements  and 
promises   with   reference   to   the   treatment  and   cure 
of  the  sick  and  afflicted  which  are  calculated  to  deceive 
and  mislead  the  public  constitute  unprofessional  and 
dishonorable  conduct.5 

Mathews  v.  Murphy,  Ky.  App.  Rep.,  1901. 
Munk  r.  Frink  (Neb.),  116  N.  W.,  525. 
Meffert  ».  Medical  Board,  66  Kan.,  710. 
Spurgeon  v.  Rhodes,  167  Ind.,  i;  78  N.  E.,  228. 
People  v.  McCoy,  125  111.,  289. 


50    <WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

A  physician  is  guilty  of  disgraceful  conduct  authori- 
zing the  erasure  of  his  name  from  the  medical  register 
where  he  accepts  money  from  those  in  the  last  stages 
of  consumption,  under  the/  representation  that  they 
are  suffering  from  catarrhal  bronchitis,  when  he  must 
have  known  the  truth.1 

(6)  Advertising. — Extensive  advertising  by  a  physi- 
cian cannot  of  itself  be  said  to  be  disgraceful  conduct, 
but   where    such    advertisements    are    studied    efforts 
to  impose  upon  the  credulity  of  the  public  for  gain 
they  are  utterly  disgraceful  within  the  meaning  of  a 
statute  providing  for  an  erasure  of  physicians,  names 
from   the   medical   register  where   they   are  guilty  of 
misconduct.2      An  advertisement  which  asserts  to  the 
public  ability  speedily  to  cure  all   chronic,   nervous, 
blood,  and  skin  diseases  of  both  sexes,  also  diseases 
of  the  eye  and  ear,  without  injurious  drugs  or  hin- 
drance from  business;   all  old  lingering  constitutional 
diseases,   where  the  blood  is  impure,   causing  ulcers, 
blotches,  sore  throat  and   mouth,   pains  in  the  head 
and  bones,   cured  for  life,   etc.,   has  been  held  to  be 
unprofessional   conduct  of  the   grossest  kind.3     Pub- 
lishing   broadcast    the    symptoms    of    catarrh    is    not 
conduct  disgraceful  in  a  professional  respect.4 

(7)  Distributing  Indecent  and  Obscene  Printed  Matter. 
—The  conviction  of  a  physician  of  distributing  obscene 

and  indecent  printed  matter  in  the  District  of  Colum- 
bia has  been  held  to  be  sufficient  ground  for  the 
revocation  of  his  license  by  the  board  of  Medical 
Supervisors  under  an  Act  of  Congress  investing  such 
board  with  the  power  to  revoke  licenses  for  sufficient 
cause.5 

1  In  re  Washington,  23  Ont.  Rep.,  299.  2  Ibid.,  299. 

3  State  v.  State  Board  of  Medical  Examiners,  34  Minn.,  391. 

4  In  re  Washington,  23  Ont.,  299. 

5  Czarra  v.  Board  of  Medical  Supervisors,  25  App.  D.  C.,  443. 


REQUIREMENTS  FOR  ADMISSION  TO  PRACTICE    51 

(8)  Fradulent    Use  of   Diploma. — A  physician  who 
obtains  a  certificate  from  the  State  Board  of  Health 
by  the  fraudulent  use  of  a  diploma  issued  to  a  different 
person  is  guilty  of  "grossly  unprofessional  conduct" 
of   a    character    likely    to    deceive    or    defraud    the 
public.1 

(9)  Concealing    a     Fetus.—  'The    revocation    of    a 
physician's    license    for    unprofessional,    dishonorable, 
and    immoral   conduct   cannot   be   sustained   upon    a 
complaint  which  merely  charged  that  on  a  given  date 
the  defendant  placed  in  a  furnace  a  headless  fetus, 
about  seven  months  old,  with  intent  to  destroy  the 
same  and  conceal  its  birth;  and  that  at  the  coroner's 
inquest   over   such    fetus   he   testified    that   the   child 
was  the  result  of  a  miscarriage,  its  head  having  become 
detached  in  delivery;  that  he  would  not  disclose  the 
mother's  name,  as  she  had  requested  him  not  to  make 
it  known,  and  that  he  had  been  advised  that  he  need 
not  disclose  it;  that  he  withheld  it,  not  through  fear 
of  incriminating  himself,   but  to  avoid   the  publicity 
it  would  give  the  mother,   but  that  he  would  give 
her  name  to  the  coroner  the  next  day,  who  could  use 
his   discretion    in    the    matter,    while    upon    the   next 
day  he  refused  to  give  her  name  upon  the  ground  that 
she  had  left  the  State,  and  without  her  presence  to    . 
explain  her  condition  at  the  time  his  answer  might 
incriminate   him,   since   neither  the  attempt   to  burn 
the    fetus   nor   the    refusal    to   disclose    the    mother's 
name  was  of  necessity  either  unprofessional,  dishonor- 
able,  or  immoral,   but  both  were  acts  as  consistent 
with  innocence  as  with  guilt."2 

(k)  Proceedings    to    Revoke    License. — Where    the 
proceedings  to  revoke  a  physician's  license  for  unpro- 

1  State  Board  of  Health  r.  Roy,  22  R.  I.,  358. 
*  State  v.  Kellogg,  14  Mont.,  426. 


52     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

fessional  and  dishonorable  conduct  are  had  before 
a  State  board  of  medical  examiners,  or  other  quasi- 
judicial  body,  the  allegations  of  the  complaint  are  not 
construed  as  strictly  as  they  would  be  in  an  action 
before  a  regularly  constituted  court;  but  even  in  such 
cases  the  license  will  not  be  revoked  unless  the  com- 
plaint sets  forth  facts  which  constitute  an  offence.1 

(/)  Good  Moral  Character. — A  State  may  prescribe 
the  qualifications  of  one  engaged  in  any  business  so 
directly  affecting  the  lives  and  health  of  the  people 
as  the  practice  of  medicine.  It  may  require  both 
qualifications  of  learning  and  of  good  character,  and, 
if  it  deems  that  one  who  has  violated  the  criminal  laws 
of  the  State  is  not  possessed  of  sufficient  good  char- 
acter, it  can  deny  to  such  an  one  the  right  to  practise 
medicine,  and,  further,  it  may  make  the  record  of  a 
conviction  conclusive  evidence  of  the  fact  of  the 
violation  of  the  criminal  law  and  of  the  absence  of 
the  requisite  good  character.2 

(m)  Proof  of  Diploma. — An  applicant  for  a  certifi- 
cate to  practise  medicine  and  surgery  who  possesses 
a  diploma  must  furnish  to  the  examining  board  satis- 
factory proof  of  having  received  such  diploma  from 
a  legally  chartered  medical  institution  in  good  stand- 
ing,3 and  a  diploma  is  not  itself  evidence  of  that  fact.4 

To  prove  a  diploma  given  to  a  physician  by  a 
medical  college  of  another  State,  the  legal  existence 
of  the  college  must  be  produced.5  The  burden  of 
proving  that  a  medical  school  is  reputable  or  in  good 

1  State  v.  Kellogg,  14  Mont.,  426. 

2  Eastman  v.  State,  109  Indiana,  278;  State  v.  Hathaway,   115  Mo.,  36, 
47;  Hawker  ».  New  York,  170  U.  S.,  189;  State  v.  Call,  N.  C.,  28  S.  E.,  517; 
Wert  v.  Clutter,  37  Ohio  St.,  347;  Dent  v.  West  Virginia,  129  U.  S.,  114,  122. 

3  State  v.  Gregory,  83  Mo.,  123. 

4  Hill  v.  Boddie,  2  Stew  and  P.  (Ala.),  56. 

5  Hunter  v.  Blount,  27  Ga.,  76. 


PRACTISING  MEDICINE  OR  SURGERY  53 

standing  is  on  the  applicant,  the  board  having  the 
right  to  ascertain  whether  the  college  issuing  the 
diploma  was  authorized  by  law  to  do  so. 


3.  WHAT  CONSTITUTES  PRACTISING  MEDICINE  OR 

SURGERY 

(a)  In  General. — In  the  absence  of  a  statutory 
definition  the  words  "practising  medicine  and  surgery" 
must  be  taken  to  have  a  meaning  in  their  ordinary 
sense.  Medicine,  in  its  ordinary  sense,  as  applied  to 
human  ailments,  means  something  which  is  admin- 
istered, either  internally  or  externally,  in  the  treat- 
ment of  disease,  or  the  relief  of  sickness.  It  may  be 
applied  externally  and  it  need  not  necessarily  be  a 
substance  which  may  be  seen  or  handled.  It  may 
consist  of  electricity  conveyed  by  instruments  or  the 
human  hand.  And  he  whose  profession  it  is  to  pre- 
scribe and  administer  this,  after  diagnosticating  the 
complaint,  is  a  physician  as  commonly  and  ordinarily 
understood.1 

One  may  be  convicted  of  prescribing  and  furnishing 
medicines  for  the  sick  without  a  license,  if  he  assures 
the  public  of  his  ability  to  cure  their  diseases,  and 
if  upon  their  applying  to  him,  after  diagnosticating 
the  case,  he  selects  a  remedy  which  he  calls  a  tissue 
food  and  sells  it,  with  directions  for  its  use;  and  the 
fact  that  the  substance  given  may  have  some  value 
as  a  food  is  immaterial.2 

One  who  recommends  and  offers  for  sale  an  instru- 
ment or  device  called  "oxygenor,"  which  is  claimed  to 
generate  oxygen  gas  and  introduces  it  into  the  body 

1  Springer  v.  District  of  Columbia,  23  App.  Cas.,  59;  Kansas  City  v.  Baird, 
92  Mo.  App.,  284. 

*  State  v.  Breese,  137  Iowa,  673;   1 14  X.  W.,  45. 


54     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

of  the  user,  is  not  engaged  in  the  practice  of  medicine, 
within  the  meaning  of  an  act  regulating  the  practice 
of  medicine,  and  applicable  to  any  person  who  treats, 
or  professes  to  treat,  operate  on,  or  prescribe  for,  any 
physical  ailment  or  injury  to  or  deformity  of  another.1 

One  making  a  business  of  fitting  spectacles  and 
inviting  persons  afflicted  with  certain  troubles  due  to 
defective  sight  to  call  upon  him,  but  who  states  that 
he  does  not  give  medical  or  surgical  treatment,  has 
been  held  not  to  be  engaged  in  the  practice  of  medicine 
within  the  meaning  of  the  Illinois  statute.2 

(b)  Osteopathy. — Whether  or  not  a  person  giving 
osteopathic  treatment  is  to  be  regarded  as  practising 
medicine  usually  depends  upon  the  breadth  of  the 
definition  given  the  particular  statute  to  the  term 
"practising  medicine."  Thus  in  those  States  where 
the  statute  or  the  courts  confine  the  definition  to  the 
mere  administration  of  drugs  or  the  use  of  surgical 
instruments  it  has  been  held  that  an  osteopath  is 
not  within  the  statute.3  Osteopathy  has  been  held 
not  to  be  an  "agency"  within  the  meaning  of  an  act 
to  regulate  the  practice  of  medicine,  which  forbids 
the  prescribing  of  any  drug  or  medicine  or  other 
agency  for  the  treatment  of  disease  by  a  person  who 
has  not  obtained  from  the  board  of  medical  regislm- 
tion  and  examination  a  certificate  of  qualification.4 
Nor  is  an  osteopath  within  a  statute  defining  any 
person  as  engaged  in  practising  medicine  or  surgery 
who  shall,  for  a  fee,  prescribe,  direct,  or  recommend 
for  the  use  of  any  person,  any  drug  or  medicine  or 

1  People  v.  Lchr,  196  111.,  361;  63  N.  E.,  725. 

1  State  Board  of  Health  v.  Smith,  20  111.,  31 ;  69  N.  E.,  810. 

3  Kentucky — Nelson  r.  State  Hoard  >,f  \\<  •;ilth,  108  Ky.,  769.    Mississippi — 
Hayden  v.  State,  81  Miss.,  291.     New  York — Smith  v.  Lane,  24  Hun.,  632. 
Pennsylvania — Com.  v.  Thompson,  24  Pa.  Co.  Ct.,  667. 

4  State  v.  Liffring,  61  Ohio  St.,  39;  55  N.  E.,  168. 


PRACTISIXG  MEDICIXE  OR  Si'RGERY  55 

other  agency  for  the  treatment,  cure,  or  relief  of  any 
wound,  fracture  or  bodily  injury,  infirmity  or  disease.1 
In  New  Jersey  it  has  been  held  that  osteopathy  is 
not  within  the  purview  of  a  statute  making  unlawful 
the  applying  of  any  drug,  medicine,  or  other  agency 
or  application  by  an  unlicensed  physician.2  On  the 
other  hand,  it  has  been  held  in  Illinois  and  in  Nebraska 
that  an  osteopath  is  amenable  to  statutes  'which 
provide  that  anyone  shall  be  regarded  as  practising 
medicine  who  shall  treat,  operate  on,  or  prescribe 
for,  any  physical  ailment  of  another.3  And  that  he 
does  not  come  within  a  clause  providing  that  such 
statutes  shall  not  apply  to  any  person  who  ministers 
to  or  treats  the  sick  or  suffering  by  mental  or  spiritual 
means,  without  the  use  of  any  drug  or  material  remedy.4 
It  has  been  held  in  a  late  Ohio  case  that  the  system 
of  rubbing  and  kneading  the  body,  commonly  known 
as  osteopathy,  is  comprehended  within  the  statutory 
definition  of  the  practice  of  medicine.5  In  Alabama 
and  in  the  later  New  York  decisions  it  has  been  held 
that  the  legislative  intent  was  to  include  all  who 
practise  the  healing  art  and  not  to  confine  it  to  those 
who  merely  administer  drugs  or  use  surgical  instru- 
ments.6 

(c)  Christian  Science. — As  in  the  case  of  osteopathy 
whether  or  not  a  person  giving  Christian  Science 
treatment  is  to  be  regarded  as  practising  medicine 

1  Eastman  P.  State,  4  Ohio  N.  P.,  163. 

*  State  r.  Herring,  70  N.  J.  L.,  34;  56  Atl.,  670. 

*  Illinois — People  r.  Gordon,   194  111.,  560,  reversing  96  111.  App.,  456; 
People  v.  Jones,  92  111.  App.,  445;  Eastman  P.  State,  71  111.  App.,  236.  Nebraska 
— Little  P.  State,  60  Nebr.,  749. 

4  State  Board  of  Health  r.  Jones,  92  111.  App.,  447. 
1  State  P.  Gravett,  65  Ohio  St.,  289. 

*  Alabama — Bragg  p.  State,   134  Ala.,  165;  32  So.,  767;  Ligon  r.  State, 
145  Ala.,  659;  39  So.,  662.    New  York — People  p.  Allcutt,  117  App.  Div., 
546,  affirmed  189  N.  Y.,  517;  81  N.  E.,  1171;  matter  of  Bandel  P.  Dept  of 
Health,  193  N.  Y.,  133. 


56     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

depends  upon  the  breadth  of  the  definition  of  the 
term  "  practising  medicine"  as  set  out  in  the  statute, 
or  upon  the  construction  placed  upon  the  term  by  the 
courts.  It  has  been  held  in  Ohio  that  the  giving  of 
Christian  Science  treatment  for  a  fee  for  the  cure  of 
disease  is  practising  medicine  within  the  meaning 
of  statutes  providing  that  any  person  who  shall  for  a 
fee  prescribe  or  recommend  for  the  use  of  any  person 
any  drug,  medicine,  or  other  agency  for  the  treatment, 
cure,  or  relief  of  any  bodily  injury,  infirmity,  or  disease, 
shall  be  regarded  as  practising  medicine  and  surgery.1 
In  Nebraska  it  has  been  held  that  the  act  to  regulate 
the  practice  of  medicine  is  as  much  directed  against 
any  unauthorized  person  who  shall  operate  on,  profess 
to  heal,  or  prescribe  for  or  otherwise  treat  any  physical 
or  mental  ailment  of  another  as  against  one  who 
practises  medicine.2  On  the  other  hand,  it  has  been 
held  in  Rhode  Island  that  praying  for  those  suffering 
from  disease  or  teaching  that  disease  will  disappear 
and  that  physical  perfection  be  attained  as  a  result 
of  prayer,  does  not  constitute  the  practice  of  medicine.3 
In  Missouri  it  has  been  held  that  a  Christian  Scientist 
who  believes  that  disease  is  an  illusion  of  the  mind 
and  not  a  reality,  and  teaches  the  sick  this  theory  of 
disease  is  not  a  physician  within  the  meaning  of  the 
Missouri  statute.4 

(d)  Bone  Setting. — One  who  professes  and  practises 
bone  setting  in  dislocations  and  fractures,  reducing 
sprains,  swellings,  and  contractions  of  the  sinews  by 
friction  and  fomentation  has  been  held  to  be  engaged 
in  the  practice  of  surgery.5 

1  State  v.  Marble,  72  Ohio  St.,  21;  73  N.  E.,  1063. 

2  State  v.  Buswell,  40  Nebr.,  158. 

3  State  v.  Mylod,  20  R.  I.,  632. 

4  Kansas  City  v.  Baird,  92  Mo.  App.,  204. 
8  Hewitt  v.  Charier,  16  Pick.  (Mass.),  353. 


PRACTISING  MEDICINE  OR  SURGERY  57 

(e)  Midwifery  and  Obstetrics. — One  who  practises 
midwifery  or  obstetrics  is  within  the  statute  requiring 
a  license  and  other  qualifications  of  persons  practising 
medicine  or  surgery.1 

(/)  Ophthalmology. — One  who  has  an  office  in  a 
hotel  and  has  on  his  door  the  sign  "Dr.  -  — ,"  and 
who  when  called  upon  by  a  patient  and  engaged  to 
treat  her  eyes  told  her  she  had  a  cataract,  astigma- 
tism, and  other  ailments  of  the  eyes,  which  he  treated 
by  prescribing  ointment  or  salves  and  eye  washes, 
for  which  he  charged  her  ten  dollars,  and  furnished 
her  with  glasses  for  which  he  charged  fifteen  dollars 
is  engaged  in  the  practice  of  medicine  within  the 
meaning  of  the  Missouri  statute.2 

Publishing  a  card  as  "doctor  of  neurology  and 
ophthalmology"  is  a  public  profession  that  one  is  a 
physician,  and  this  with  the  assumption  of  duties 
as  such,  comes  within  the  meaning  of  the  statute 
prohibiting  the  practice  of  medicine  without  a 
license.3 

(g)  Treatment  of  Disease  by  Science  of  Light.— 
One  who  treats  disease  by  the  operation  of  the  science 
of  light  is  not  within  a  proviso  exempting  opticians 
from  the  operation  of  a  statute  requiring  physicians 
and  surgeons  to  be  licensed;  when  he  makes  micro- 
scopic examinations  of  the  blood  taken  from  his 
patients  in  his  diagnoses  of  their  disease,  and  treats 
them  by  placing  them  under  the  rays  of  electric  arc 
lights  of  a  certain  kind,  and  also  writes  prescriptions 
and  prescribes  remedies,  though  no  charge  is  made 
for  prescriptions.4 

1  People  v.  Arendt,  60  111.  App.,  89;  Com.  v.  Porn,  196  Mass.,  326;  State 
v.  Welch,  129  N.  C.,  579. 

*  State  v.  Blumenthal,  141  Mo.  App.,  500. 
1  State  v.  Wilhite,  132  Iowa,  226. 
«  O'Neil  r.  State,  115  Tenn.,  427. 


58     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

(h)  Healers. — One  holding  himself  out  as  a  doctor 
and  advertising  to  the  public  that  he  is  able  to  cure 
disease  by  suggestion  and  laying  on  of  hands  is, 
although  he  does  not  use  drugs  or  surgery,  within 
the  meaning  of  a  statute  forbidding  the  practice  of 
medicine  without  a  license,  and  denning  the  practice 
of  medicine  as  announcing  to  the  public  a  readiness 
to  attempt  to  heal,  cure,  or  relieve  disease  of  mind  or 
body,  or  to  use  in  connection  with  one's  name  the 
word  "doctor"  or  "healer"  intended  to  designate  him 
as  a  practitioner  of  medicine  of  any  of  its  branches.1 

(i)  Magnetic  Healers. — One  who  advertises  him- 
self as  a  magnetic  healer,  and  who  gives  treatment 
by  rubbing  or  kneading  the  body  for  the  purpose  of 
freeing  the  nerve  force  or  in  the  nature  of  osteopathic 
treatment,  is  not  within  the  exception  in  favor  of 
those  treating  the  sick  by  mental  or  spiritual  means, 
even  though  he  accompanies  his  treatment  by  mental 
suggestion,  but  is  practising  medicine  within  the 
meaning  of  the  statute  requiring  a  license  therefor.2 

A  sign  "Dr.  -  — ,  Magnetic  Healer,"  is  evidence 
that  one  held  himself  out  as  a  medical  practitioner.3 

(j)  Magic  Healing. — One  who  professes  to  "heal 
the  sick  without  the  use  of  medicine"  but  "by  placing 
his  hands  upon  that  portion  of  the  body  that  is  affected 
by  pain,"  the  healing  resulting  from  "magic  power 
given  direct  from  the  Lord,"  is  not  a  medical  practi- 
tioner within  the  meaning  of  the  Georgia  statutes.4 

(k)  Clairvoyance. — A  medical  clairvoyant  who  visits 
sick  patients,  examines  their  condition,  determines 
the  nature  of  the  disease,  and  prescribes  the  remedies 
deemed  most  appropriate  is  engaged  in  the  practice 

1  Witty  v.  Indiana,  90  N.  E.,  627. 

*  People  v.  Trenner,  144  111.  App.,  275;  State  v.  Heath,  125  la.,  585. 

3  People  v.  Phippin,  70  Mich.,  6. 

4  Bennett  v.  Ware,  4  Ga.  App.,  293. 


flfRl 


59 

of  medicine.1  But  it  has  been  held  in  Massachusetts 
that  a  ''mere'1  clairvoyant  was  not  a  physician.2 

(/)  The  Giving  of  Electric  Treatments. — This  is  the 
practice  of  medicine  within  the  meaning  of  statutes 
requiring  persons  engaged  in  the  practice  of  medicine 
and  surgery  to  file  certain  papers.3 

(m)  Chiropractice. — One  advertising  himself  as  a 
chiropractic  and  undertaking  to  heal  persons  accord- 
ing to  that  system  by  manipulating  the  spine  of  the 
patient  is  engaged  in  the  practice  of  medicine.4  One 
who  advertises  as  "Dr.  M—  — ,  Chiropractor,  Read 
carefully  the  contents  of  this  Booklet.  It  will  interest 
you.  The  Cure  of  Disease.  Cure  of  disease  follows 
Chiropractice  adjustment  because  Chiropractice  re- 
moves the  cause.  Chiropractice  is  a  Distinct  and 
Complete,  Drugless,  and  Knifeless  System  and  has 
nothing  in  common  with  Osteopathy,  Massage, 
Swedish  Movement  or  any  other  system.  Chiro- 
practice is  successful  in  all  forms  of  disease.  This 
means  your  Disease.  If  your  case  is  numbered  among 
those  supposed  impossibilities,  do  not  despair.  Try 
Chiropractice  and  get  well.  .  .  .  Chiropractice  is 
a  common-sense  treatment.  It  will  bear  investiga- 
tion. It  is  based  on  a  correct  knowledge  of  the  nervous 
tissues.  It  adjusts  all  displacements  and  allows  the 
innate  builder  to  reconstruct  the  broken-down  tissues," 
has  been  held  to  be  within  the  statute  prohibiting 
the  practice  of  medicine  without  a  license.5 

(n)  Doctor  of  Mechano-neural  Therapy. — One  who 
advertises  himself  as  a  doctor  practising  mechano- 
neural  therapy,  who  makes  a  diagnosis  and  prescribes 

1  Bibber  v.  Simpson,  59  Maine,  181;  Wilson  v.  Harrington,  72  Wis.,  591. 

*  Wood  v.  O'Kelly,  62  Mass.,  406. 

1  Davidson  r.  Bohlman,  37  Mo.  App.,  576. 
4  State  ».  Corwin  (Iowa  Supreme  Court,  191 1). 

*  State  v.  Miller,  146  Iowa,  521. 


ISM01 


diet  and  conduct  and  simple  remedies,  and  who 
asserts  the  power  to  cure  all  diseases  that  any  physi- 
cian can  cure  without  drugs  and  also  diseases  that  they 
cannot  cure  with  drugs,  and  who  takes  payment  for 
a  consultation  wherein  there  is  an  examination  and 
determination  of  the  trouble,  as  well  as  payment  for 
subsequent  treatment,  even  if  no  drugs  are  admin- 
istered, is  engaged  in  the  practice  of  medicine  within 
the  meaning  of  the  registration  statute.1 

(0)  Doctor  of  Dermatology  and  Physical  Education. 
— One  who  has  on  his  office  door  his  name  with  the 
prefix  "Dr."  and  followed  by  the  words  "Doctor  of 
Dermatology  and  Physical  Education,"  advertising 
himself  as  having  opened  an  office  for  the  practice 
of  dermatology  and  physical  education  in  the  cure  of 
every  and  all  manner  of  disease  on  the  inside  or  out- 
side of  the  human  body,  stating  that  consultation  and 
advice  are  absolutely  free,  the  only  charge  being  for 
Electro  -Magnetic  Nerve  Food  and  work  done,  and 
who,  after  diagnosticating  a  case  brought  to  him, 
sells  different  sorts  of  his  nerve  food  with  directions 
as  to  its  use  or  applies  it  himself,  is  engaged  in  the 
practice  of  medicine  in  violation  of  the  statute.2 

(p)  Hypnotism  or  Massage. — Personal  treatment 
of  one  person  by  another  by  hypnotism  or  massage 
alone,  unaccompanied  by  any  direction  as  to  the  use 
of  drugs,  medicines,  or  other  remedies  to  be  used  by 
the  patient,  does  not  come  within  the  term  "prescrib- 
ing remedies"  as  used  in  a  statute  requiring  every 
person  whose  business  it  is,  for  a  fee  or  a  reward,  to 
prescribe  remedies  or  perform  surgical  operation  for 
the  cure  of  any  bodily  disease  or  ailment  to  obtain  a 
license,  but  when  accompanied  by  such  direction  as 

1  People  v.  Allcutt,  117  App.  Div.,  546,  affirmed  in  189  N.  Y.,  517. 

2  State  v.  Hefferman,  28  R.  I.,  20;  65  Atl.,  284. 


PRACTISING  MEDICINE  OR  SURGERY  61 

to  the  use  of  drugs,  medicines,  or  other  remedies  by 
the  patient,  it  will  come  within  the  terms  of  such 
statute  and  be  in  violation  thereof.1 

(q)  Professing  to  Cure  Opium  Habit. — One  who 
styles  himself  a  doctor,  and  who  claims  to  cure  the 
opium  habit,  is  within  the  provision  of  a  statute  mak- 
ing illegal  the  practice  of  medicine  without  a  license.2 

(r)  Vending  and  Administering  Patent  Medicines. 
-The  mere  sale  of  patent  medicines  by  one  who  does 
not  diagnosticate  disease  and  determine  what  remedy 
is  proper  is  not  the  practice  of  medicine.  But  a  patent 
issued  to  a  person,  granting  him  the  sole  right  to 
manufacture  a  certain  remedy,  does  not  authorize 
him  to  administer  it  as  a  physician,  unless  he  has  com- 
plied with  the  statutory  requirements.3  An  unlicensed 
person  claiming  to  be  a  physician  and  holding  him- 
self out  to  the  world  as  such,  cannot,  after  examining 
a  patient,  who  has  asked  his  services,  diagnosticating 
the  disease,  fixing  an  amount  or  price  for  which  he 
will  cure  the  patient  and  giving  him  a  prescription, 
evade  the  law  by  proving  that  the  medicine  was  a 
proprietary  remedy  prepared  and  sold  by  him.  As 
was  said  by  the  Court  in  a  North  Carolina  Supreme 
Court  decision,  "If  such  were  the  law,  a  pretender, 
with  half  a  dozen  or  more  medicines  of  his  own  manu- 
facture, and  marked  as  nostrums  suitable  for  certain 
classes  of  diseases,  might  declare  himself  a  graduate 
in  medicine  and  capable  of  curing  diseases  of  all  kinds, 
after  examining  the  patient  and  determining  which 
one  of  his  ready-made  preparations  would  prove  the 
panacea  to  meet  the  particular  symptoms,  might 
administer  it  and  thus  defeat  and  evade  this  salutary 

1  State  v.  Lawson  (Del.),  65  All.,  593. 

1  Benham  v.  State,  116  Ind.,  112;  18  N.  E.,  454. 

*  Jordan  v.  Dayton,  4  Ohio,  295. 


62     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 

law  passed  for  the  purpose  of  preventing  quacks  from 
masquerading  as  trained  medical  men."1  Thus  it 
has  been  held  that  one  who  professes  knowledge  of 
the  science  of  medicine,  and  who  obtains  patients, 
diagnosticating  their  cases,  deciding  that  they  were 
suffering  from  a  malady  for  which  he  had  compounded 
a  remedy,  prescribing  and  furnishing  that  remedy, 
and  employing  other  physicians  to  take  immediate 
charge  of  the  patients  and  administer  the  remedy,  is 
engaged  in  the  practice  of  medicine.2  The  Supreme 
Court  of  Tennessee  has  held  one  engaged  in  the  prac- 
tice of  medicine,  where  it  appeared  that  he  was  advertis- 
ing a  patent  medicine  by  making  a  speech  or  harangue 
to  a  crowd  assembled  in  the  open  air,  and  that  he  said 
if  anybody  with  a  stiff  neck  or  joint,  headache  or 
rheumatism,  or  neuralgia,  or  a  stiff  hand,  would  come 
on  the  stage  he  would  guarantee  to  cure  him  in  five 
minutes  with  his  liniment,  and  that  people  accordingly 
went  up  to  the  stage,  and  that  such  person  rubbed 
liniment  on  those  that  responded  to  his  invitation, 
for  the  purpose  of  relieving  the  stiff  neck  or  stiff  hand, 
as  the  case  might  be,  and  stated  that  the  directions 
were  on  the  bottle  and  that  the  purchaser  could 
increase  or  diminish  the  dose  as  the  case  might  require, 
and  also  instructed  him  that  it  would  benefit  him  to 
take  a  cold  bath  every  morning  and  that  his  diet  should 
be  eggs,  buttermilk,  and  corn  bread.3  One  who  styles 
himself  Blue  Mountain  Joe,  and  travels  through  the 
country  with  a  band  of  music  and  some  Indians,  giving 
free  entertainments,  at  which  he  told  what  diseases 
he  could  cure,  and  sold  his  remedies  is  engaged  in 
the  practice  of  medicine  within  the^State.4 

1  State  v.  Van  Doran,  109  N.  C.,  864;   14  S.  E.,  32. 

2  Springer  v.  District  of  Columbia,  23  App.  Cas.,  59. 
1  Payne  v.  State,  112  Tenn.,  588;  79  S.  W.,  1025. 

4  People  v.  Blue  Mountain  Joe,  129  111.,  370;  21  N.  E.,  923. 


RIGHT  OF  WOMEN  TO  PRACTISE  MEDICINE      63 

(s)  Administering  Domestic  Remedy  for  Pay.— 
It  is  well  settled  that  one  who  holds  himself  out  as 
competent  to  prescribe  is  engaged  in  the  practice  of 
medicine,  although  the  remedy  prescribed  and  charged 
for  is  of  his  own  invention.1  But  one  who  does  not 
solicit  patronage  and  who  does  not  hold  himself  out 
as,  or  pretend  to  be  a  physician,  but  simply  advises 
or  gives  medicine  to  a  sick  person  merely  as  a  neighbor 
and  friend,  and  makes  no  charge  and  expects  no  com- 
pensation, is  not  engaged  in  the  practice  of  medicine.2 

Quinine  is  not  a  domestic  remedy* 

(/)  Practising  under  Licensed  Physician. — Any  per- 
son practising  medicine  without  the  statutory  qualifi- 
cations is  liable  to  the  penalties  provided  for  by 
statute,  although  the  operations  are  performed  and  the 
medicines  administered  and  given  under  the  direction 
and  charge  of  a  licensed  physician  and  surgeon.4 

4.  RIGHT  OF  WOMEN  TO  PRACTISE  MEDICINE 

As  late  as  1638  we  find  this:  "Jane  Hawkins,  the 
wife  of  Richard  Hawkins  had  liberty  till  the  beginning 
of  the  third  month  called  May,  and  the  magistrate 
to  dispose  of  her;  and  in  the  meantime  she  is  not  to 
meddle  in  surgery  or  phisick,  drinks,  plaisters  or 
oyles,  nor  to  question  matters  of  religion  without 
except  with  the  elders  for  satisfaction."5  In  the 
United  States  at  the  present  time,  women  have  free 
access  to  Medical  Colleges. 

1  People  P.  Lee  Wah,  71  Cal.,  80;  u  Pac.,  851;  State  v.  Van  Doran,  109 
N.  C.,  864;  Jordan  v.  Dayton,  4  Ohio,  295;  State  v.  Heffernan,  28  R.  I.,  20; 
65  Atl.,  284;  Payne  v.  State,  112  Tenn.,  587. 

*  Nelson  v.  State,  97  Ala.,  79;   12  So.,  421. 

1  Cook  ».  People,  125  111.,  278;   17  N.  E.,  849. 

4  State  ».  Reed,  68  Ark.,  331;  58  S.  W.,  40;  State  r.  Paul,  56  Nebr.,  369; 
76  N.  W.,  861. 

*  True  Blue  Laws  of  Connecticut,  by  J.  H.  Trumbull,  1876. 


64     WHO  MAY  PRACTISE  MEDICINE  AND  SURGERY 


5.  RIGHT  OF  CORPORATIONS  TO  PRACTISE  MEDICINE 

A  corporation  cannot  be  licensed  to  practise  medi- 
cine, but  qualified  and  licensed  physicians  may  form 
a  corporation  and  make  contracts  for  the  services  of 
its  members  and  other  licensed  physicians.  The 
qualifications  of  a  medical  practitioner  is  personal  to 
himself.1 

1  State  Eel ectro- Medical  Institute  v.  State,  74  Nebr.,  103. 


CHAPTER  IV 
RELATION   OF   PHYSICIAN   TO   PATIENT 

1.  In  General. — The  relation  existing  between  the 
physician  or  surgeon  and  the  patient  is  of  a  peculiar 
nature.    The  law  creates  an  implied  contract  between 
them  based  upon  the  relation.    This  contract  is  really 
founded  upon  the  duty  which  the  law  imposes  upon 
the   physician    in    the   interest   of   the    public,    which 
requires  that  he  shall  use  ordinary  skill  and  knowledge 
in  any  case.     There  is  no  implied  contract  that  the 
physician  will  effect  a  cure.    Such  a  contract  can  only 
be  expressly  made.1 

2.  Duty  to  Respond  to  All  Calls. — It  seems  to  be 
conceded  that  a  physician  is  not  liable  at  common 
law  for  refusing  to  attend  a  sick  person  who  demands 
his  services.     And  in  at  least  one  State  it  has  been 
held  that  he  is  under  no  obligation  to  respond  to  a 
call  by  reason  of  the  fact  that  he  holds  a  State's  license 
to  practise  medicine,  although  he  is  the  family  physi- 
cian and  no  other  physician  is  procurable.2     It  is  not 
until  a  physician  accepts  a  person  as  a  patient  that 
his  duties  and  the  corresponding  obligations  arise. 

Upon  consenting  to  treat  a  patient  it  becomes  his 
duty  to  use  reasonable  care  and  diligence  in  the  exer- 
cise of  his  skill  and  the  application  of  his  learning  to 
accomplish  the  purpose  for  which  he  was  employed. 

3.  Duty   of   Physician   to   Patient. — A  physician  or 
surgeon  holding  himself  out  to  practise  medicine  and 

1  Pike  v.  Honsinger,  155  N.  Y.,  201. 
*  Hurley  v.  Eddingfield,  156  Ind.,  416. 


66  RELATION  OF  PHYSICIAN  TO  PATIENT 

undertaking  employment,  impliedly  contracts  with 
his  patient  that  he  possesses  a  reasonable  degree  of 
learning,  skill,  and  experience,  and  that  he  will  use 
reasonable  and  ordinary  care  and  diligence  in  the 
performance  of  his  professional  duty.1 

The  rule  of  reasonable  care  and  diligence  does  not 
require  the  exercise  of  the  highest  possible  degree  of 
care,  and  to  render  a  physician  liable,  it  is  not  enough 
that  there  has  been  a  less  degree  of  care  than  some 
other  medical  man  might  have  bestowed,  but  there 
must  be  a  want  of  ordinary  and  reasonable  care 
leading  to  a  bad  result.  This  includes  not  only  the 
diagnosis2  and  treatment,3  but  also  the  giving  of 
proper  instructions  to  his  patient  or  his  attendants.4 

He  is  under  the  further  obligation  to  use  his  best 
judgment  in  exercising  his  skill  and  applying  his 
knowledge.  The  law  holds  him  liable  for  an  injury 
to  his  patient  resulting  from  want  of  the  requisite 
knowledge  and  skill,  or  the  omission  to  exercise  reason- 
able care,  or  the  failure  to  use  his  best  judgment.  In 
accepting  a  patient,  the  physician  in  effect  says  that 
he  possesses  and  will  exercise  reasonable  skill  and 
judgment  to  discover  the  trouble  of  the  patient 
and  whether  it  is  curable.5 

The  rule  in  relation  to  learning  and  skill  does  not 
require  the  surgeon  to  possess  that  extraordinary 
learning  and  skill  which  belongs  only  to  a  few  men 

1  State  v.  Housekeeper,  70  Md.,  162;  Pike  v.  Honsinger,  155  N.  Y.,  201. 

2  Colorado — Jackson  v.  Burnham,  20  Colo.,  532;  39  Pac.,  577.     Illinois — 
Quinn  v.  Donovan,  85  111.,   194.     Maine — Patten  v.  Wiggin,  51  Me.,  594. 
Missouri— Grainger  v.  Still,   187  Mo.,   197;  85  S.  W.,   1114.     New   York — 
Graves  v.  Santway,  52  Hun.,  613;  127  N.  Y.,  677. 

3  Quinn  v.  Donovan,  85  111.,  194;  Pike  v.  Honsinger,  155  N.  Y.,  201. 

4  Beck  v.  Klinik,  78  Iowa,  696;  Feeney  v.  Spalding,  89  Me.,  in;  Vanhooser 
v.  Berghoff,  90  Mo.,  487;  Carpenter  v.  Blake,  75  N.  Y.,  12;  Pike  v.  Honsinger, 
155  N.  Y.,  203. 

5  Logan  ».  Field,  192  Mo.,  54. 


DUTY  OF  PHYSICIAN  TO  PATIENT  67 

i 
of  rare  endowments,  but  such  as  is  possessed  by  the 

average  member  of  the  medical  profession  in  good 
standing.1  Still  he  is  bound  to  keep  abreast  of  the 
times,  and  a  departure  from  the  approved  methods 
in  general  use  if  it  injures  the  patient  will  render  him 
liable,  however  good  his  intentions  may  have  been.2 

Discoveries  in  the  natural  science  for  the  last  half 
century  have  exerted  a  sensible  influence  on  all  the 
learned  professions,  but  especially  on  that  of  medi- 
cine, whose  circle  of  truths  has  been  relatively  enlarged, 
and  besides,  there  has  been  a  positive  progress  in  that 
profession  resulting  from  the  studies,  the  experiments, 
and  the  diversified  practice  of  its  professors.  The 
patient  is  entitled  to  the  benefit  of  these  increased 
lights.  The  physician  or  surgeon  who  assumes  to 
exercise  the  healing  art  is  bound  to  be  up  to  the 
improvements  of  the  day.  The  standard  of  ordinary 
skill  is  on  the  advance;  and  he  who  would  not  be 
found  wanting,  must  apply  himself  with  all  diligence 
to  the  most  accredited  sources  of  knowledge.  An 
amputation  which  would  have  been  justified  twenty- 
five  years  ago  would  now  be  looked  upon  as  clear 
evidence  of  ignorance  and  unskilfulness. 

The  general  rule  of  law  is  that  a  physician  or  surgeon, 
or  one  who  holds  himself  out  as  such,  whether  duly 
licensed  or  not,  when  he  accepts  an  employment  to 
treat  a  patient  professionally,  must  exercise  such 
reasonable  care  and  skill  in  that  behalf  as  is  usually 
possessed  and  exercised  by  physicians  or  surgeons 


1  London  v.  Humphry,  9  Conn.,  209;  Tefft  p.  Wilcox,  6  Kan.,  46;  Howard 
p.  Grover,  28  Me.,  97;  Simonds  p.  Henry,  39  Me.,  155;  Pike  .p.  Honsinger, 
155  N.  Y.,  201. 

1  Iowa — Dunbauld  v.  Thompson,  109  la.,  199.  Kansas — Tefft  P.  Wilcox, 
6  Kan.,  46.  Maine— Patten  p.  Wiggin,  51  Me.,  594.  New  York — Carpenter 
p.  Blake,  60  Barb.,  488.  Ohio — Gillette  P.  Tucker,  67  Ohio  St.,  106.  Pennsyl- 
vania— 22  Pa.  St.,  261.  Rhode  Island — Bigney  P.  Fisher,  26  R.  I.,  402. 


68  RELATION  OF  PHYSICIAN  TO  PATIENT 

in  good  standing  of  the  same  system  or  school  of 
practice.  For  all  the  physician  undertakes  is  that 
he  will  faithfully  treat  the  case  according  to  the 
recognized  rules  of  his  particular  school.1  The  rule 
requiring  him  to  use  his  best  judgment  does  not  hold 
him  liable  for  a  mere  error  of  judgment,  provided  he 
does  what  he  thinks  best  after  careful  examination.2 
His  implied  engagement  with  his  patient  does  not 
guarantee  a  good  result. 

4.  Contract  of  Employment. — (a)  Express  Contracts. 
—A  physician  or  surgeon  may  enter  into  an  express 
contract  with  a  patient;  in  fact,  the  majority  of  surgical 
operations  are  performed  under  an  express  contract; 
and  it  is  becoming  more  common  for  physicians  to 
be  paid  by  the  month  or  year  for  their  services  to  a 
family,  and  in  a  great  many  chronic  cases  they  are 
retained  to  effect  a  cure  for  a  certain  sum.  The  con- 
tract need  not  be  in  writing,  and  the  physician  will 
be  held  to  the  sum  stipulated  in  the  contract  no  matter 
how  much  work  or  unexpected  services  he  will  be 
required  to  perform. 

(&)  Implied  Contracts. — Every  layman  is  familiar 
with  the  fact  that  the  great  majority  of  contracts 
between  physicians  and  patients  are  implied  contracts, 
that  is,  the  contract  is  evidenced  by  conduct  mani- 
festing an  intention  of  agreement.  For  example: 
The  patient  sends  for  the  physician  or  calls  at  his 
office,  ^the  physician  drives  out  to  his  home  or  makes 
an  examination  at  the  office,  diagnosticates  the  case, 
gives  the  patient  some  medicine,  and  proceeds  to  treat 
the  case  without  informing  the  patient  of  the  length 
of  time  necessary  to  effect  a  cure,  the  drugs  he  intends 

1  Patten  v.  Wiggin,  51  Me.,  594. 

2  Fisher  v.  Nicolls,  2  111.  App.,  484;  Pike  v.  Honsinger,  155  N.  Y.,  201; 
Heath  v.  Glisan,  3  Or.,  64. 


CONTRACT  OF  EMPLOYMENT  69 

to  use,  how  skilfully  he  will  perform  the  work,  what 
he  will  charge  for  it,  or  when  he  expects  his  pay.  In 
such  cases  the  law  implies  a  contract  between  them. 
In  the  first  place  it  implies  the  physician  will  perform 
his  services  with  the  skill  and  learning  of  the  average 
physician  and  that  the  patient  will  pay  for  the  services, 
when  properly  performed,  if  the  fee  is  the  ordinary 
and  reasonable  charge  for  such  services.  In  the  absence 
of  a  special  contract  to  that  effect,  a  physician  does 
not  warrant  or  insure  that  his  treatment  will  be 
successful  or  even  beneficial.1 

The  implied  contract  of  a  physician  or  surgeon  is 
not  to  cure — to  restore  a  fractured  limb  to  its  natural 
perfectness — but  to  treat  the  case  with  diligence  and 
skill.  The  fracture  may  be  so  complicated  that  no 
skill  vouchsafed  to  man  can  restore  original  straight- 
ness  and  length;  or  the  patient  may,  by  wilful  dis- 
regard of  the  surgeon's  directions,  impair  the  effect 
of  the  best  conceived  measures.2 

As  was  said  by  Judge  Woodward  in  a  Supreme 
Court  decision  in  Pennsylvania:  "He  deals  not  with 
insensate  matter  like  the  stonemason  or  bricklayer, 
who  can  choose  their  materials  and  adjust  them  along 
mathematical  lines;  but  he  has  a  suffering  human 
being  to  treat,  a  nervous  system  to  tranquilize,  and  a 
will  to  regulate  and  control."3 

Freedom  from  errors  of  judgment  is  never  contracted 

1  United  States— Ewing  v.  Goode,  78  Fed.  Rep.,  442.  Colorado — Jackson  v. 
Burnham,  20  Colo.,  532.  Illinois — Quinn  ».  Donovan,  85  111.,  194;  Yunker 
v.  Marshall,  65  111.  App.,  667.  Indiana — Jones  v.  Angell,  95  Ind.,  376;  Hoop- 
ingarner  v.  Levy,  77  Ind.,  455.  Kansas — Teft  v.  Wilcox,  6  Kan.,  46;  Petti- 
grew  v.  Lewis,  46  Kan.,  78.  Kentucky — Hickerson  p.  Neely  (Ky.  1900),  54 
S.  W.,  842. 

1  Fish  v.  Welker,  5  Ohio  Dec.,  752;  Williams  v.  Poppleton,  3  Or.,  139; 
McCandless  ».  McWha,  22  Pa.,  261;  Bigney  v.  Fisher,  26  R.  I.,  402;  59 
Atl.,  72. 

1  McCandless  v.  McWha,  22  Pa.  St.,  261. 


70  RELATION  OF  PHYSICIAN  TO  PATIENT 

for  by  the  physician.  Ordinary  good  judgment  is 
necessarily  implied  in  the  possession  of  ordinary  skill, 
and  if  such  share  of  judgment  is  fairly  exercised,  any 
risk  from  mere  errors  and  mistakes  is  upon  the  em- 
ployer alone.  The  patient,  too,  has  judgment  to 
exercise  in  the  selection  of  the  physician  whom  he 
will  employ;  and  if  he  makes  a  bad  selection — if  he 
fails  to  choose  a  man  of  the  best  judgment — the 
result  is  fairly  to  be  attributed  to  his  own  mistake, 
and  is  not  to  be  visited  upon  the  man  who  has  honestly 
done  his  best  endeavor  in  his  service.  It  is  in  accord- 
ance with  these  views  that  it  has  often  been  held 
that  a  physician  is  not  responsible  for  errors  of  judg- 
ment, for  mere  mistakes,  in  cases  of  reasonable  doubt 
and  uncertainty.1 

5.  Duty   as   to   Frequency   of   Visits. — A   physician 
must,   in  the  first  instance,   determine  how  often  he 
ought  to  visit  a  patient,  and  if  the  party  employing 
him  accepts  his  services  and  does  not  discharge  him 
or   require   him   to   come   less   frequently,    or   fix   the 
times  when  he  wishes  him  to  attend,  he  cannot  after- 
ward refuse  to  pay  for  visits  on  the  ground  that  they 
were  unnecessary,   for  the  physician  is  the  judge  as 
to  the  frequency  of  the  visits  in   the  absence  of  an 
agreement  to  the  contrary.2 

6.  Duration   of  Employment. — The  employment  of 
a  physician  continues  while  sickness  lasts,  unless  put 
an  end  to  by  the  assent  of  the  parties  or  revoked  by 
the  express  dismissal  of  the  physician,3  the  character 

1  Jackson  v.  Burnham,  20  Colo.,  532;  Vanhooser  v.  Berghoff,  90  Mo.,  487; 
3  S.  W.,  72;  Carpenter  v.  Blake,  60  Barb.,  488;  Leigh  ton  v.  Sargeant,  7  Foster 
(N.  H.),  460;  Heath  v.  Glisan,  3  Or.,  64;  Graham  v.  Gautier,  21  Tex.,  in; 
Dye  v.  Corbin,  59  W.  Va.,  266,  53  S.  E.,  147. 

2  Ebner  v.  Mackey,  186  111.,  297,  57  N.  E.,  834. 

8  Tomer  v.  Aiken,  126  Iowa,  114;  Lawson  v.  Conaway,  37  W.  Va.,  159; 
16  S.  E.,  564. 


DUTY  AS  TO  DIAGNOSIS  71 

of  a  physician's  services  being  such  that  he  cannot 
quit  the  services  without  cause  or  reasonable  notice;1 
but  where  the  employment  of  a  physician  has  been 
terminated,  he  may  refuse  further  attendance,  and 
such  refusal,  where  there  is  no  further  showing,  save 
that  the  patient  was  suffering  the  pain  usual  in  such 
cases,  will  not  justify  the  admission  of  evidence  that 
the  same  amounted  to  improper  treatment.2 

A  physician  who  leaves  a  patient  at  a  critical  stage 
of  the  disease,  without  reason,  or  sufficient  notice  to 
enable  the  party  to  procure  another  medical  attendant, 
is  guilty  of  a  culpable  dereliction  of  duty.3 

7.  Duty  as  to  Diagnosis. — A  physician  or  surgeon 
employed  to  treat  an  injury  or  disease  impliedly  con- 
tracts that  he  will  use  his  best  judgment  in  the  appli- 
cation of  his  skill  in  deciding  upon  the  nature  of  the 
disease  or  injury  and  the  best  mode  of  treatment.4 

If  through  negligence  or  the  want  of  ordinary 
skill,  care,  or  diligence  the  practitioner  fails  to  make 
such  a  sufficient  examination  as  would  enable  him  to 
diagnosticate  a  case  correctly,  he  will  be  held  guilty 
of  malpractice,  and  liable  for  damages  resulting 
therefrom,  for  the  patient  is  entitled  to  an  ordinarily 
careful  and  thorough  examination  of  his  injuries, 
such  as  the  circumstances  attending  their  inflic- 
tion, the  condition  of  the  patient,  and  the  surgeon's 
opportunities  for  proper  examination  suggested  and 
allowed."6  It  has  been  said  that  erroneous  diagnosis 
alone,  not  followed  by  improper  treatment,  does 
not  render  the  physician  liable  for  malpractice. 

The  court  in  a  case  where  the  plaintiff  was  engaged 

1  Gillette  v.  Tucker,  67  O.  S.,  106. 
8  Tomer  v.  Aiken,  126  Iowa,  114. 

*  Barbour  v.  Martin,  62  Me.,  536. 
4  Bonnett  v.  Foot,  47  Colo.,  282. 

*  Burk  r.  Foster,  114  Ky.,  20. 


72  RELATION  OF  PHYSICIAN  TO  PATIENT 

to  marry  the  daughter  of  a  party  and  in  which  the 
evidence  showed  that  the  party  was  informed  that 
the  plaintiff  was  diseased  and  thereupon  employed  the 
defendant,  a  physician,  to  examine  the  plaintiff,  with 
the  result  that  the  plaintiff  was  reported  diseased  and 
the  engagement  broken,  said:  "Having  undertaken 
for  compensation  to  be  paid  by  another  to  examine 
plaintiff,  and  to  report  whether  he  was  diseased,  the 
defendant  was  bound  to  have  the  ordinary  skill  and 
learning  of  a  physician  and  surgeon,  and  exercise 
ordinary  diligence  and  care,  and  if  he  failed,  and  the 
plaintiff  was  injured  because  of  his  want  of  such  skill 
and  learning,  or  his  want  of  such  care,  the  defendant 
was  answerable  to  him  in  damages." 

Thus  it  seems  to  be  settled  that  a  physician  is 
liable  for  a  negligent  diagnosis  in  cases  where  no 
treatment  is  rendered.  In  Logan  v.  Field,1  a  Missouri 
case,  it  was  held  that  the  plaintiff  was  entitled  to 
damages  where  a  reasonable  careful  diagnosis  would 
have  shown  that  the  disease  was  incurable,  or  would 
not  yield  to  usual  treatment  or  that  it  was  probable 
that  the  patient  would  not  be  benefited  by  such  treat- 
ment, and  the  physician  failed  to  make  such  discovery 
or  failed  to  advise  the  patient  thereof. 

A  physician  is  not  required  to  be  infallible  in  diag- 
nosticating diseases,  so  that  the  fact  that  a  patient's 
disease  was  different  than  it  was  diagnosticated  to 
be  is  merely  evidence  of  negligence.2 

8.  Duty  as  to  Appliances. — Physicians  and  surgeons 
are  under  implied  obligations  when  they  undertake 
to  treat  diseases  or  injuries  to  bring  to  their  aid  such 
obtainable  appliances  as  discovery  and  experience  have 


1  75  Mo.  App.,  594. 

2  Hamrick  v.  Shipp  (Ala.),  52  So.,  932. 


DUTY  TO  GIVE  INSTRUCTIONS  73 

found  to  be  the  most  proper  and  beneficial  in  aiding 
recovery.1 

9.  Duty  as  to  the  Use  of  Anesthetics. — A  physician 
or  surgeon  using  an  anesthetic  agent  is  bound  to  look 
to  the  natural  and  probable  effects  thereof;  but  he  is 
not  answerable  for  negligence  on  results  arising  from 
the  peculiar  condition  or  temperament  of  the  patient 
of  which  he  had  no  knowledge.     It  is  his  duty,  how- 
ever, to  use  the  highest  professional  care  and  skill  to 
avoid  every  possible  danger.2 

10.  Duty  to  Give  Instructions. — It  is  the  duty  of 
the  physician  or  surgeon  to  inform  the  patient  or  those 
having  charge  of  him  as  to  all  reasonable  instructions 
as  to  the  treatment  and  care  of  the  particular  case, 
not  only  for  the  period  during  which  the  physician 
is  attending  the  patient,  but  also  for  the  period  of 
convalescence.    The  physician,  however,  is  not  bound 
to  anticipate  and  advise  against  improbable  conduct 
on  the  part  of  the  patient.3 

The  failure  to  give  any  instruction  when  such  in- 
struction should  be  given,  or  the  giving  of  erroneous 
instructions  will  render  a  physician  liable  for  mal- 
practice if  injury  result.  In  an  Iowa  case  the  court 
said:  'The  jury  found  especially  that  defendants 
properly  set  plaintiff's  leg;  that  they  properly  treated 
it  until  he  was  discharged;  and  that  they  used  proper 
and  approved  methods  and  appliances  in  the  treat- 
ment of  the  leg — but  it  nowhere  found,  directly  or 
by  implication,  that  they  gave  plaintiff  proper  instruc- 
tions, or  did  not  give  him  improper  instructions,  for 
the  care  and  use  of  his  injured  leg.  Defendants  may 

1  Stevenson  v.  Gelsthorpe,  10  Mont.,  563.    See  Chapter  VI. 

1  Bogle  v.  Winslow,  5  Phila.,  136;  Keily  ».  Colton,  i  N.  Y.  City  Ct.,  439. 
Sec  also  Chapter  VI. 

»  Carpenter  r.  Blake,  60  Barb.  (N.  Y.),  488;  Beck  v.  German  Klinik,  78 
la.,  696;  Richards  v.  Willard,  176  Pa.,  181 ;  35  All.,  114. 


74  RELATION  OF  PHYSICIAN  TO  PATIENT 

have  exercised  proper  care,  and  used  proper  skill  in 
all  things,  yet,  under  the  law  of  the  case,  if  they 
omitted  to  give  plaintiff  proper  instructions  for  the 
care  and  use  of  his  wounded  leg,  they  were  rightly 
held  liable  by  the  jury.  As  we  have  said,  the  jury 
was  authorized  to  find  for  the  plaintiff  under  the 
evidence,  on  the  ground  of  defendant's  negligence 
in  the  omission  to  discharge  their  duty  to  instruct 
plaintiff  as  to  the  care  and  use  of  his  injured  leg."1 

II.  Duty  to  Avoid  Communicating  Contagious  Dis- 
eases.— It  is  the  duty  of  physicians  who  are  attend- 
ing patients  inflicted  with  infectious  or  contagious 
diseases,  when  called  to  attend  other  patients  not  so 
infected,  to  take  all  such  precautionary  means  as 
experience  has  proved  to  be  necessary  to  prevent  its 
communication  to  their  patients.  This  rule  applies 
to  the  communication  of  a  disease  from  which  the 
physician  himself  is  suffering  as  well  as  to  the  commu- 
nication by  the  physician  of  a  disease  from  one  patient 
to  another,  as  where,  having  treated  one  patient 
known  to  him  to  have  an  infectious  or  contagious 
disease,  he  proceeds  to  treat  another  patient  without 
warning  him,  and  without  taking  precautionary  meas- 
ures against  the  communication  of  the  disease.2 

The  law  requires  the  use  of  all  possible  care  to 
prevent  the  spread  of  smallpox  or  other  contagious 
diseases;  and  while  the  medical  profession  is  divided 
as  to  the  necessity  of  using  any  particular  precau- 
tionary measures,  a  physician  or  other  person  having 
the  care  of  smallpox  patients  will  be  justified  in  adopt- 
ing it;  and  within  the  operation  of  this  rule  paper 
may  be  removed  from  the  walls  of  rooms  in  which 
smallpox  patients  have  been  sick,  if  in  the  opinion 

1  Beck  v.  The  German  Klinik,  78  la.,  696. 

2  Piper  v.  Menifee,  12  B.  Mon.  (Ky.),  465. 


VALIDITY  OF  GIFTS  FROM  PATIENT  TO  PHYSICIAN    75 

of  the  attending  physician  it  has  become  so  soiled 
and  besmeared  with  smallpox  virus  as  to  make  its 
removal  necessary.1 

12.  As  to  Communications  by  Patient  to  Physician. 
—So  sacred  is  the  knowledge  which  comes  to  a  physi- 
cian or  surgeon  in  a  professional  way  that  nearly  all 
of  the  States   have  enacted   statutes   forbidding   the 
disclosure  in  evidence  against  the  will  of 'the  patient, 
of  information  acquired  by  physicians  in  a  professional 
capacity.     These  statutes  have  been  enacted  on  the 
grounds  of  public  policy,  and  the  cases  arising  there- 
under form  an  important  branch  of  our  law,  and  are 
treated  in  Chapter  IX  of  this  work. 

13.  Validity  of  Gifts  and  Conveyances  from  Patient 
to  Physician. — The  relation   between  a  medical  man 
and   his   patient  is  one   in   which   the   probability  of 
undue  influence  is  inferred;  and  so  in  dealings  with 
their  patients  the  acts  of  physicians  are  watched  with 
great  jealousy.2 

Thus  the  law  will  presume  a  contract  between 
a  physician  and  a  patient,  who  is  old  and  failing  in 
mind,  to  have  been  the  result  of  undue  influence 
emanating  from  the  stronger  party.  But  in  the  case 
of  a  sale  by  a  patient  to  a  physician,  where  there  was 
no  proof  of  inadequacy  of  price,  the  transaction  was 
sustained.3 

While  the  relation  of  physician  and  patient  exist, 
the  advisor  shall  take  no  benefit  to  himself  from 
contracts  or  other  negotiations,  without  establishing 
this  perfect  fairness  and  adequacy,  and  that  the  deed 
was  the  deliberate  act  of  the  confiding  party,  after 
being  fully  informed  of  his  rights,  interest,  and  duties, 

1  Seavey  r.  Preble,  64  Me.,  120. 
1  Cadwallader  r.  West,  48  Mo.,  483. 
*  Doggett  v.  Lane,  12  Mo.,  215. 


76  RELATION  OF  PHYSICIAN  TO  PATIENT 

and  put  on  his  guard  against  even  the  suggestion  of 
his  own  inclination.1 

The  position  occupied  by  a  physician  toward  his 
patient  is  of  such  a  confidential  character  as  to  throw 
upon  him  the  duty  of  showing,  expressly,  that  a 
conveyance  of  real  estate  from  the  patient  was  fair 
and  conscientious,  beyond  the  reach  of  suspicion.2 
A  contract  between  physician  and  patient  whereby 
the  former  agrees,  for  a  fixed  sum  to  be  paid  after 
the  other's  death,  to  render  professional  services  and 
furnish  medicine  to  the  patient  for  the  remainder  of 
her  natural  lifetime  in  any  sickness  or  indisposition 
she  may  suffer  at  any  time  or  place,  is  not  void  as 
against  public  policy  or  as  a  wagering  contract.3 

14.  Duty  of  Patient  Toward  His  Physician. — It  is 
the  duty  of  the  patient  to  cooperate  with  the  physi- 
cian, and  to  conform  to  his  prescriptions  and  directions, 
and  if  he  neglect  to  do  so  he  cannot  hold  the  physician 
responsible  for  his  own  neglect.  To  entitle  a  patient 
to  recover  he  must  not  have  contributed  to  his  injury 
in  any  degree.4  Neither  can  the  patient  recover 
when,  by  his  own  acts,  he  has  rendered  it  impossible 
to  .determine  whether  the  suffering  and  pain  com- 
plained of  was  caused  by  his  own  negligence.  For 
example,  where  by  his  own  voluntary  act  he  leaves 
the  hospital  before  he  ought  to  do  so  and  makes  it 
impossible  to  tell  whether  or  not  he  would  have  been 
cured  had  he  remained.  Or,  "for  instance,  suppose 
a  man  fractures  the  bones  in  his  leg  below  the  knee, 
and  calls  a  surgeon  to  treat  the  injuries,  and  the 
surgeon  negligently  fails  to  reduce  one  of  the  fractures, 

1  Greenfield's  Estate,  14  Pa.,  506. 

2  Unruh  v.  Lukens,  166  Pa.,  324. 

3  Zeigler  v.  Illinois  F.  &  S.  Bank,  245  111.,  180. 

4  Geiselman  v.  Scott,  25  Ohio  St.,  86;  McCandless  v.  McWha,  22  Pa.,  261; 
Lawson  v.  Conaway,  37  W.  Va.,  159. 


DUTY  OF  PATIENT  TOWARD  HIS  PHYSICIAN      77 

but  in  all  other  respects  gives  proper  treatment, 
and  the  patient,  in  disobedience  to  the  directions 
of  the  surgeon,  negligently  removes  the  bandages  used 
as  a  part  of  the  proper  treatment  by  the  surgeon, 
or  is  otherwise  guilty  of  contributory  negligence, 
and  such  combined  negligence  of  the  surgeon  and 
patient  unite  in  producing  a  shortness  and  stiffness 
of  the  leg  for  which  injuries  an  action  is  brought 
against  the  surgeon — can  the  patient  recover?  The 
patient  is  certainly  not  responsible  in  such  a  case  for 
the  original  negligence  of  the  surgeon  in  failing  to 
properly  reduce  the  fracture,  but  this  negligence  of 
the  surgeon  unites  with  the  subsequent  contributory 
negligence  of  the  patient  in  causing  the  shortness 
and  stiffness  of  the  leg."  Hence,  the  patient  has  no 
cause  of  action  against  the  surgeon.1 

As  was  said  in  a  Pennsylvania  case  by  Judge  Lewis: 
"A  patient  is  bound  to  submit  to  such  treatment  as 
his  surgeon  prescribes,  provided  the  treatment  be 
such  as  a  surgeon  of  ordinary  skill  would  adopt  or 
sanction;  but,  if  it  be  painful,  injurious,  and  unskilful, 
he  is  not  bound  to  peril  his  health,  and  perhaps  his 
life,  by  submission  to  it.  It  follows  that  before  the 
surgeon  can  shift  the  responsibility  from  himself 
to  the  patient  on  the  ground  that  the  latter  did  not 
submit  to  the  course  recommended,  it  must  be  shown 
that  the  prescriptions  were  proper,  and  adapted  to 
the  end  in  view."!  The  most  common  form  of  con- 
tributory negligence  on  the  part  of  the  patient  is  where 
the  patient  disobeys  the  instructions  of  his  physician; 
it  being  the  duty  of  a  patient  to  cooperate  with  his 
physician  and  obey  all  necessary  instructions.  So,  if 
a  surgeon  tells  his  patient  to  visit  him  again  as  soon 

1  Young  v.  Mason,  8  Ind.  App.,  264;  35  N.  E.,  521. 
1  McCandless  Vt  McWha,  22  Pa.,  261,  272. 


78  RELATION  OF  PHYSICIAN  TO  PATIENT 

as  he  feels  any  pain,  and,  though  he  felt  pain  for  a 
week,  he  did  not  return  according  to  his  instructions, 
the  surgeon  is  exonerated  for  the  resulting  injury.1 
So,  if  a  physician  requests  the  employment  of  another 
physician  for  consultation  and  to  assist  in  adminis- 
tration of  an  anesthetic,  and  the  patient  refuses  or 
neglects  to  secure  it,  the  physician  will  not  be  liable 
for  the  permanent  injury  resulting,  when  such  assist- 
ance would  have  rendered  the  injury  only  temporary.2 
Likewise,  if  a  patient  who  is  directed  by  his  physician 
to  observe  absolute  rest  as  a  part  of  the  treatment 
of  an  injured  foot,  negligently  fails  to  observe  such 
direction,  or  purposely  disobeys  the  same,  he  cannot 
recover  if  such  disobedience  proximately  contributes 
to  the  injury  of  which  he  complains.3 

15.  Sunday  Contracts. — In  statutes  prohibiting  work 
or  labor  on  Sunday  there  is  usually  an  exception  made 
in  favor  of  works  of  charity  or  necessity.  Indeed, 
statutes  without  this  exception  have  been  held  void. 
As  to  what  constitutes  a  work  of  charity  or  necessity 
there  have  been  numerous  decisions,  and  it  is  im- 
possible to  lay  down  any  general  rule  as  to  works  of 
charity  and  necessity;  but  it  has  been  uniformly  held 
that  the  employment  of  a  physician  and  a  promise  to 
pay  him  is  not  unlawful  because  made  on  Sunday. 

1  Jones  v.  Angell,  95  Ind.,  376. 

2  Haering  ».  Spicer,  92  111.  App.,  449. 

3  Geiselman  ».  Scott,  25  Ohio  St.,  86. 


CHAPTER  V 

COMPENSATION 

i.  RIGHT  TO  RECOVER  COMPENSATION 

(a)  In  General. — In  England  a  physician  cannot 
recover  fees  by  any  legal  process,  as  by  an  ancient 
fiction  he  is  supposed  to  render  his  services  for  purely 
philanthropic  motives;  though  a  mere  surgeon  has  a 
legal  right  to  his  fees.  And  it  has  been  held  that  a 
physician  might  recover  for  professional  services  on 
a  special  contract.1  No  such  distinction  exists  or 
appears  ever  to  have  existed  in  this  country.  Physi- 
cians of  all  grades  can  sue  for  their  fees.  And  the  law 
implies  a  promise  of  the  patient  to  pay  for  medical 
services  rendered,  whether  such  services  were  beneficial 
to  the  patient  or  not.2  But  an  implied  promise  to 
pay  for  professional  services  is  not  presumed  from  the 
mere  fact  of  their  rendition.3  A  physician  who  is  a 
member  of  a  board  of  health  may  recover  reasonable 
compensation  for  purely  professional  services  which 
any  other  physician  might  render,  where  rendered 
by  him  under  direction  of  the  board  of  health  without 
any  expressed  agreement  for  compensation.4 

(6)  License    as    Prerequisite    to    Compensations.— 
A  contract  to  pay  a  fee  for  services  rendered  by  a 
physician  who  is  not  licensed  to  practise  medicine  is 
void  in  its  inception  where  a  statute  prohibits  him 

1  Attorney  General  ».  Royal  College  of  Physicians,  7  Jus.  N.  S.,  511. 

*  Logan  v.  Field,  192  Mo.,  54. 

1  Bremerman  v.  Hayes,  9  Pa.  Super.  Ct.,  8. 

4  Spearman  v.  City  of  Texarkana,  Ark. 


80  COMPENSATION 

from  practising  as  a  physician  for  a  fee  or  a  reward.1 
Thus  a  physician  and  surgeon  practising  without 
a  license  cannot  recover  for  professional  services 
rendered  where  the  statute  makes  it  a  misdemeanor 
to  practise  medicine  without  first  procuring  an  official 
license  to  do  so.2  In  the  majority  of  the  States  no 
express  provision  upon  the  subject  exists,  and  in  such 
States  the  right  of  the  unqualified  physician  to  recover 
his  compensation  has  been  denied  by  the  courts.3 
But  a  physician  practising  without  a  license  may 
maintain  an  action  at  law  for  his  services  if  during 
the  time  of  those  services  there  was  no  existing  board 
of  examiners.4  A  contract  by  a  physician  to  treat 
his  patient  professionally  for  any  sickness  she  might 
suffer  is  not  rendered  invalid  by  the  fact  that  he  had 
no  license  to  practise  medicine  in  the  State  where 
the  patient  was  temporarily  sojourning  at  the  time 
of  her  death,  when  he  was  duly  licensed  to  practise 
medicine  in  the  State  where  the  contract  was  made 
and  was  merely  attending  such  patient  and  not  in 
general  practice  in  the  other  State.5 

(c)  Registry  as  Prerequisite  to  Compensation. — A 
physician  or  surgeon  can  recover  no  compensation  for 
services  rendered  when  they  have  failed  to  register 
as  required  by  statute,6  unless  such  registration  is 

1  Louisiana — Czarnowski  v.  Zeyer,  35  La.  Ann.,  796;  Quarles  v.  Evans, 
7  La.  Ann.,  543.    Maine — Holmes  v.  Hade,  74  Me.,  28.    Nebraska — Maxwell 
v.  Swigart,  48  Nebr.,  789.    North  Carolina — Puckett  v.  Alexander,  102  N.  C., 

95- 

2  Harrison  v.  Jones,  80  Ala.,  412. 

3  Alabama — Harrison    v.    Jones,    80    Ala.,    412.      California — Gardner   v. 
Tatum,  8 1  Cal.,  370.    Georgia — Murray  v.  Wilbains,  121  Ga.,  63.    Indiana — 
Orr  v.  Meek,   in  Ind.,  40.     Mississippi — Bohn  v.  Lowery,  77  Miss.,  424. 
New    York — Accetta  v.  Zupa,   54  App.   Div.,  33.      Tennessee — Haworth  v. 
Montgomery,  91  Tenn.,  16. 

4  Woodside  v.  Baldwin,  30  Fed.  Cas.  No.  17,  995. 

5  Zeigler  v.  Illinois  T.  &  S.  Bank,  245  111.,  180. 

6  Accetta  v.  Zupa,  54  App.  Div.,  33;  Wickes-Nease  v.  Watts,  30  Tex.  Civ. 
App.,  515;  70  S.  W.,  1001. 


RIGHT  TO  RECOVER  COMPENSATION  81 

not  made  a  prerequisite  to  the  right  to  practise.1  A 
physician  who  in  consequence  of  the  fact  that  the 
clerk  of  the  superior  court  did  not  have  a  book  in  which 
he  could  register  did  not  succeed  in  doing  so,  but 
who  was  called  to  attend  a  patient,  and  did  practise, 
can  recover  his  fees  therefor,  it  appearing  that  he 
registered  so  soon  as  the  book  was  obtained  by  the 
clerk.2  It  has  been  held  in  Missouri  that  the  neglect 
of  a  physician  to  register  in  accordance  with  an  ordi- 
nance penalizing  the  practice  of  medicine  in  the  city 
without  doing  so  is  immaterial  in  an  action  for  medical 
services.3 

(d]  Effect  of  Revival  of  License  Act. — A  physician 
who  was  practising  at  the  date  of  the  act  reviving 
an  act  to  regulate  the   licensing   of   physicians   is  a 
qualified   physician,  and  may  collect  his  account  for 
medical  services.4 

(e)  Right   of   Christian   Scientist   to   Recover   Com- 
pensation. — Where    Christian    Scientist    treatment    is 
prohibited  by  law,  of  course  a  scientist  cannot  recover 
for  his  services,  but  where  such  treatment  is  not  so 
prohibited  he  is  entitled  to  his  fees  for  such  services. 
There  is  nothing  immoral  or  unlawful  in  a  contract 
between  a  Christian  Science  healer  and  one  choosing 
to  be  treated.     Its  wisdom  or  folly  is  immaterial,  and 
is  for  the  parties  and  not  for  the  courts.* 

(/)  As  Affected  by  Want  of  Skill  or  Care. — There 
is  a  conflict  of  authority  as  to  whether  a  physician 
or  surgeon  who  has  been  negligent  in  diagnosticating 
a  case  or  in  the  treatment  of  it,  or  who  lacks  the 

1  Riley  v.  Collins,  16  Colo.  App.,  280;  64  Pac.,  1052. 

*  Parish  P.  Foss,  75  Ga.,  439. 

1  Prietto  v.  Lewis,  1 1  Mo.  App.,  600. 

4  Maddox  v.  Boswell,  30  Ga.,  38;  Newsom  v.  Lindsey,  21  Ga.,  365. 

•  Wheeler  v.  Sawyer,  15  Atl.,  67. 


82  COMPENSATION 

necessary  skill  and  education,  can  recover  in  a  suit 
for  professional  services. 

Some  cases  hold  that  the  same  facts  which  would 
authorize  a  recovery  for  malpractice  would  constitute 
a  defence  in  a  suit  for  professional  services,  holding 
the  contract  entire  and  performance  necessary  to 
entitle  the  physician  to  recover.1  In  New  Jersey  it 
has  been  held  that  the  right  of  a  physician  to  be  com- 
pensated for  services  depends  upon  diligent  exercise 
under  employment  of  skill  which  commonly  pertains 
to  the  profession.2  While  the  courts  of  other  States 
hold  that  even  though  a  physician  was  guilty  of  negli- 
gence in  the  treatment  of  a  patient,  he  can  recover 
for  the  value  of  his  services,  less  the  amount  of  damage 
suffered  because  of  his  negligence.3  A  late  Missouri  case 
lays  down  the  law  as  regards  the  right  of  a  physician 
to  recover  pay  for  worthless  services  rendered  thus: 

"i.  The  law  implies  a  promise  on  the  part  of  the 
patient  to  pay  for  medical  services,  without  regard 
to  whether  such  services  were  beneficial  to  the  patient 
or  not. 

"2.  A  physician  may  pursue  a  particular  course 
of  treatment  and  charge  the  patient  therefor,  as  long 
as  the  physician  has  reasonable  cause  to  believe  the 
disease  of  the  patient  will  yield  to  the  treatment,  and 
this  without  regard  to  whether  the  patient  is  or  is 
not  cured  or  benefited  by  such  professional  service. 

"3.  The  physician  has  not  unlimited  discretion  to 
serve  his  patient. 

"4.  The  patient  has  a  right  to  expect  good  faith 
from  the  physician;  also  to  rely  upon  the  supposed 

1  Kansas — Abbot  v.  Mayfield,  8  Kan.  App.,  387.    Maine — Patten  v.  Wiggin, 

51  Me.,  594.    New  York — Bellinger  v.  Craigue,  31  Barb.,  534. 

2  Ely  v.  Wilbur  (N.  J.),  10  Atl.,  358. 

3  Iowa — Whitesell  v.  Hill,  101  Iowa,  629.     Wisconsin — Ressequie  v.  Byers, 

52  Wis.,  650;  9  N.  W.,  779. 


RIGHT  TO  RECOVER  COMPENSATION  83 

superior  knowledge  of  the  doctor  to  discover,  deter- 
mine, and  advise  what  course  should  be  pursued  in 
his  case. 

"5.  A  physician  cannot  recover  for  worthless  treat- 
ment if  he  knew  or  ought  to  have  known,  as  a  reason- 
ably, competent,  and  prudent  man  of  his  profession, 
of  the  uncertainty  of  a  cure,  and  the  patient  went 
for  and  received  such  treatment  because  encouraged 
by  the  physician  to  receive  the  same  or  because  the 
physician  failed  to  inform  him  of  the  uncertainty  of 
the  treatment. 

"6.  In  accepting  a  patient,  the  physician  in  effect 
says  that  he  possesses  and  will  exercise  reasonable 
skill  and  judgment  to  discover  the  trouble  of  the 
patient  and  whether  it  is  curable. 

"7.  If  a  physician  is  conscious  of  his  inability  to 
understand  or  properly  treat  the  patient's  trouble, 
he  should  at  once  inform  the  patient  thereof;  conceal- 
ment by  the  physician  of  his  ignorance  in  performing 
unbeneficial  service  would  be  a  fraud,  and  for  which 
service  the  physician  would  be  entitled  to  no  compen- 
sation. 

"8.  If  the  failure  of  a  physician  to  discover  and 
cure  the  trouble  of  his  patient  is  because  the  physi- 
cian does  not  possess  reasonable  skill  or  because  he 
does  not  exercise  such  skill,  he  is  not  entitled  to  any 
pay  for  his  services. 

"9.  The  law  does  not  permit  a  physician  to  recover 
for  worthless  professional  service  even  though  the 
physician  does  not  guarantee  a  cure,  if  such  service 
is  negligent,  unskilful,  or  unfaithful."1 

(g)  Right  to  Compensation  Regardless  of  Result.— 
In  the  absence  of  express  agreement,  a  surgeon  who 
brings  to  services  rendered    by  him  to  a  patient  due 

1  Logan  v.  Field,  192  Mo.,  54 


84  COMPENSATION 

care  and  skill,  earns  the  reasonable  and  customary 
price  thereof,  whether  the  outcome  be  beneficial  to 
the  patient  or  the  reverse.1 

"A  physician  is  not  an  insurer  of  the  success  of  his 
treatment,  and  is  entitled  to  pay  for  his  services 
whether  he  succeeds  in  curing  his  patient  or  not, 
provided  he  uses  the  skill  of  an  ordinary  skilful  physi- 
cian."2 As  was  said  by  the  court  in  a  Wisconsin 
case:  "That  is  not  at  all  the  test.  So  that  a  surgical 
operation  be  conceived  and  performed  with  due  skill 
and  care,  the  price  to  be  paid  therefor  does  not  depend 
upon  the  result."3  The  right  to  be  compensated 
does  not  depend  upon  the  measure  of  success  in  effect- 
ing a  cure  by  the  means  employed,  but  upon  the 
diligent  exercise  under  his  employment  of  the  skill 
which  commonly  pertains  to  his  profession.  Such 
services  cannot  be  regarded  as  other  than  beneficial. 
They  are  so  in  a  legal  sense,  and  the  right  to  adequate 
compensation  arises  upon  their  rendition,  wherever 
his  fees  are  otherwise  recoverable  by  suit  at  law.4 
The  court  in  a  Tennessee  case,  which  involved  an 
amputation  with  a  butcher  knife  and  a  carpenter's 
saw,  said:  "It  certainly  requires  some  degree  of  skill 
in  anatomy  and  surgery  to  perform  an  operation  of 
the  kind,  and  the  success  that  attended  it,  though 
not  conclusive,  is  a  circumstance  from  which  skill 
may  be  inferred.  The  instruments  employed,  drawn 
from  other  vocations,  not  the  most  congenial  for  the 
special  occasion,  were  certainly  unusual  and  extraor- 
dinary for  such  a  purpose.  But  we  are  not  to  infer 
from  this  circumstance  alone  that  the  surgeon  had 

1  Cotnam  v.  Wisdom,  83  Ark.,  601. 

2  Yunker  v.  Marshall,  65  111.  App.,  667;  Teedman  v.  Loewengrund,  2  W. 
N.  C.  Pa.,  272. 

3  Ladd  v.  Witte,  116  Wis.,  35. 

«  Ely  v.  Wilbur,  49  N.  J.  L.,  685. 


RIGHT  TO  RECOVER  COMPENSATION  85 

not  sufficient  art  and  skill  in  the  use  of  them.  Besides, 
it  is  possible  that  the  delay  necessary  to  procure 
proper  instruments  might  have  been  fatal  to  the 
patient."1 

(h)  Under  No-cure  No-pay  Contract. — If  a  physi- 
cian commences  attending  upon  a  patient,  under  a 
contract  that  if  there  is  no  cure  there  shall  be  no  pay, 
he  cannot  recover  for  his  services,  or  medicines,  unless 
he  shows  a  performance  of  the  terms  of  the  contract 
upon  his  part.2  But  a  patient  who  pays  a  physician 
a  certain  sum  to  cure  him  of  a  certain  disease  on  con- 
dition that  if  he  failed  to  effect  the  cure  the  patient 
should  submit  to  further  treatment,  cannot  recover 
the  amount  agreed  upon  if  he  refused  or  neglects  to 
submit  to  further  treatment,  even  though  the  cure 
was  not  effected.3  And  it  has  been  held  that  a  physi- 
cian who  has  undertaken  to  cure  an  habitual  drunkard 
for  a  certain  sum,  may  recover  if  the  party  returns 
to  his  habits  of  drunkenness,  after  a  cure  has  been 
fairly  effected,  with  the  dishonest  purpose  of  evading 
the  contract.4 

(i)  Under  Conditional  Contract. — A  conditional  con- 
tract between  a  patient  and  his  physician  that  if  he 
.  effected  a  cure  he  should  receive  a  reasonable  compen- 
sation is  valid.6 

(j)  Effect  of  Intoxication  of  Physician. — It  is  un- 
doubtedly true  that  a  physician  or  surgeon  is  not 
entitled  to  recover  for  medical  services  rendered  while 
in  such  a  state  of  intoxication  that  he  could  not  exer- 
cise the  skill  and  care  required  of  him  by  law.  But 
it  "is  not  a  good  ground  of  defence  to  an  action  on  a 

1  Alder  v.  Buckley,  I  Swan  (Tenn.),  69. 
1  Smith  v.  Hyde,  19  Vt.,  54. 

*  Madison  r.  Mangan,  77  111.  App.,  651. 

4  Fisk  ».  Townsend,  7  Yerg  (Tenn.),  146. 

*  Mock  v.  Kelly,  3  Ala.,  387. 


86  COMPENSATION 

physician's  bill  that  the  physician  had  been  intoxicated 
in  the  past,  if,  after  such  intoxication,  the  patient 
kept  the  doctor  as  his  family  physician.1  One  cannot 
object  to  a  doctor's  bill  on  account  of  past  intoxi- 
cation when  he  keeps  him  as  a  family  physician  for 
years  afterward.2 

(k)  Right  of  Consulting  Physician  to  Compensation. 
—A  patient  is  liable  for  the  fees  of  a  consulting  physi- 
cian as  well  as  for  those  of  the  regular  physician  in 
attendance.3  This  is  so  well  settled,  that  a  physi- 
cian who  is  called  to  a  consultation  by  an  attending 
physician  for  his  own  benefit,  in  accordance  with  an 
agreement  between  the  latter  and  his  employer  that 
the  attending  physician  shall  pay  the  expense  of  the 
consultation,  can  recover  for  his  services  from  the 
employer  under  an  implied  contract,  notwithstanding 
the  agreement.4  But  a  physician  cannot  recover  in 
an  action  for  his  consultation  fee  where  there  was  no 
evidence  that  he  rendered  any  services,  or  at  any- 
body's request,  except  as  it  might  be  inferred  from 
his  visiting  the  patient  in  company  with  her  regular 
physician.5  Visits  made  by  physicians  employed 
after  one  physician  is  called  in  and  attends  regularly 
on  a  case  do  not  necessarily  rank  as  "consultations," 
so  as  to  entitle  one  to  compensation  as  for  a  consulta- 
tion.6 As  was  said  in  a  case  in  Louisiana:  "As  to 
the  pretention  that  from  the  moment  more  than  one 
physician  is  called  in  and  attends  regularly  upon  a 
case  every  visit  made  by  every  physician  employed 
takes  rank  as  a  consultation,  it  cannot  be  listened 

1  McKleroy  v.  Sewell,  73  Ga.,  657. 

2  Nelson  v.  Harrington,  72  Wis.,  591. 

3  Sherman's  Estate,  6  Pa.  Co.  Ct.,  225. 

4  Shelton  v.  Johnson,  40  Iowa,  84. 

6  Schrader  v .  Hoover,  87  Iowa,  654. 

6  Succession  of  Haley,  50  La.  Ann.,  840. 


RIGHT  TO  RECOVER  COMPENSATION  87 

to,  even  supposing  that  the  physicians  actually  meet 
at  the  patient's  bedside.  The  difference  of  the  charge 
for  what  is  technically  styled  a  consultation,  and  for 
a  simple  visit,  would  make  it  ruinous  to  most  patients 
and  unreasonably  onerous  to  all,  to  avail  themselves 
of  the  lights  of  more  than  one  of  the  faculty  in  time 
of  need."1 

(/)  For  Services  Rendered  by  Students  and  Assist- 
ants.— Physicians  and  surgeons  are  entitled  to  recover 
compensation  for  the  services  of  their  students  in 
attendance  upon  their  patients  even  though  the 
students  are  not  licensed  to  practise  medicine,2  and 
for  the  service  of  such  assistants  as  he  may  require.3 

(m)  For  Medicine  Furnished. — A  physician  who 
sells  drugs  apart  from  his  professional  business  as  a 
physician,  as  is  common  in  country  places,  may  recover 
for  them,  as  a  physician  is  not  bound  to  furnish  medi- 
cines to  his  patient,  but,  in  case  he  does  so,  he  may 
charge  for  them  and  recover  the  value  thereof  from 
the  patient.  Such  is  not  the  case,  however,  with 
surgical  instruments  which  are  a  necessary  aid  to 
the  practice  of  surgery  and  are  the  surgeon's  personal 
property.  An  unlicensed  practitioner  is  not  entitled 
to  recover  a  demand  claimed  by  him  for  medicine 
furnished,  in  which  evidently  is  included  compensa- 
tion for  his  services.4  As  was  said  by  Chief  Justice 
Savage  in  an  early  New  York  case:  "He  [the  physi- 
cian] was  sent  for  after  other  physicians  could  do  no 
more.  He  came  and  prescribed  for  the  patient,  and 
cured  her  by  the  use  of  two  phials  of  medicine  and 
a  box  of  ointment.  What  the  medicines  were  the 
witness  knew  not.  She  was  asked  the  value  not  of  the 

1  Succession  of  Duclos,  II  La.  Ann.,  406. 

1  People  v.  Monroe  Common  Pleas,  4  Wend.,  200. 

1  Board  of  County  Commissioners  v.  Brewington,  74  Ind.,  7. 

4  Underwood  v.  Scott,  43  Kan.,  714. 


88  COMPENSATION 

medicines  simply,  for  her  answers  show  that  she 
estimated  the  value  of  the  services  of  the  physician 
as  worth  $16  or  $18,  because  the  patient  was  cured. 
The  medicine  at  an  apothecary's  shop  would  probably 
have  been  worth  only  a  few  shillings,  but  here  the 
witness  and  the  jury  undoubtedly  estimated  the 
services  of  the  physician.  Where  the  same  person 
officiates  as  physician  and  apothecary,  he  comes 
within  the  decision  of  this  court,  that  an  unlicensed 
practitioner  is  incapable  of  suing  for  services  ren- 
dered, or  medicines  furnished,  as  a  physician.  As 
the  patient  was  cured,  it  is  to  be  regretted  that  B— 
was  not  paid;  but  if  unlicensed  pretenders  to  skill 
in  diseases  can  recover,  as  in  this  case,  the  statute 
may  become  a  dead  letter;  the  country  will  be  filled 
by  mere  quacks,  peddling  their  nostrums,  and  deceiv- 
ing and  destroying  the  ignorant  and  the  credulous, 
the  very  mischief  which  the  statute  is  intended  to 
prevent.  I  do  not  say  that  B—  -  is  a  mere  pretender, 
for  he  cured  his  patient,  and  in  honor  and  honesty 
should  have  been  paid;  but  it  is  our  duty  to  administer 
the  law."1  An  interesting  case  on  the  right  of  an 
unlicensed  physician  to  recover  the  value  of  drugs 
furnished  to  a  patient  is  that  of  Underwood  v.  Scott, 
43  Kans.,  714,  in  which  Justice  Green  in  the  course 
of  his  opinion  said:  "Can  the  plaintiff  recover  for 
the  medicine  alone,  having  furnished  it  as  an  attending 
physician?  The  statute  in  question  forbids  anyone 
from  practising  medicine  for  reward  or  compensation 
without  having  the  qualification  prescribed  therein. 
The  object  of  this  law,  doubtless,  was  to  prevent  un- 
authorized and  unqualified  persons  practising,  and  the 
statutes  should  not  be  so  construed  as  to  give  a  person 
the  privilege  of  exercising  a  right  which  is  in  violation 

1  Allcott  v.  Barber,  i  Wend.  (N.  Y.),  526. 


RIGHT  TO  RECOVER  COMPENSATION  80 

of  any  of  its  provisions.  To  hold  that  a  person  who 
furnished  medicine,  as  a  physician,  could  recover 
compensation  for  the  medicine  so  furnished  or  pre- 
scribed, would,  in  our  judgment,  render  the  statute 
nugatory,  and  any  authorized  person  might  prescribe 
for  a  patient  and  simply  charge  for  his  medicine 
and  thus  defeat  the  very  object  of  the  law.  The 
practice  of  medicine  may  be  said  to  consist  in  three 
things:  (l)  In  judging  the  nature,  character,  and 
symptoms  of  the  disease;  (2)  in  determining  the  proper 
remedy  for  the  disease;  (3)  in  giving  or  prescribing 
the  application  of  the  remedy  to  the  disease.  If  the 
person  who  makes  the  diagnosis  of  a  case  also  gives 
the  medicine  to  the  patient,  he  is,  in  our  judgment, 
practising  medicine  within  the  provision  of  the  statute 
in  question;  and  if  unauthorized  to  practise  or  is  in 
violation  of  the  provisions  of  the  statute,  he  is  not 
entitled  to  compensation  for  the  medicine,  which  he 
furnishes  at  the  time,  as  a  physician;  and  the  instruc- 
tion of  the  court,  which  said  to  the  jury  that  the 
(physician)  could  recover  for  the  medicine  furnished, 
though  he  might  not  have  been  entitled  to  practise 
medicine,  was  erroneous." 

(n)  For  Services  Rendered  on  Sunday. — By  the 
laws  of  several  of  the  States,  a  person  who  makes  a 
contract  in  violation  of  the  statutes  for  the  observance 
of  the  Lord's  Day  cannot  maintain  an  action  upon  it. 
These  statutes  except  from  their  operations  work  of 
necessity  which  includes  work  which  is  morally  fit 
and  proper  to  be  done  on  the  Lord's  Day,  and  the 
courts  have  held  that  the  services  of  a  physician 
come  within  this  exception.1 

(6)  Physician  Attending  Physician. — Where  a  physi- 
cian seeks  to  recover  for  professional  services  rendered 

1  Aldrich  v.  Blackstone,  128  Mass..  148. 


90  COMPENSATION 

another  physician,  evidence  that  it  is  not  the  custom 
to  charge  for  attendance  in  such  cases  is  admissible. 
In  a  suit  by  one  physician  against  the  estate  of  another, 
for  professional  services  rendered  the  decedent,  it 
is  error  to  reject  the  offer  to  prove  a  custom  among 
physicians  in  the  place  of  contract  not  to  charge 
for  attendance  of  one  physician  on  another,  and  that, 
as  a  matter  of  professional  ethics,  it  was  regarded  as 
improper  and  unprofessional  for  one  physician  to 
charge  another  for  his  attendance.  Such  evidence 
being  proper  for  the  consideration  of  the  jury  along 
with  the  other  evidence  in  the  case.1 

(p)  Where  Illness  Prevents  Performance  of  Con- 
tract.— A  patient  is  released  from  his  promise  to  pay 
for  professional  services  and  medicine  to  be  rendered 
in  the  future  by  a  physician,  where  the  latter  is  not 
capable  through  illness  to  render  the  services  or 
furnish  the  medicines  when  called  on.2 

(q)  For  Services  in  Aid  of  Personal  Injury  Action. 
— A  physician  cannot  recover  fees  from  a  firm  of 
attorneys,  the  amount  of  which  is  based  upon  the 
fact  that  the  client  contemplated  bringing  an  action 
for  personal  injuries,  and  that  in  such  action,  because 
of  his  having  rendered  medical  services,  he  might  be 
called  as  a  witness  or  be  instrumental  in  effecting  a 
compromise.3 

2.  WHO  ARE  LIABLE  FOR  COMPENSATION 

(a)  Liability  of  Patient. — (i)  In  General, — The  law 
implies  a  promise  on  the  part  of  a  patient  to  pay 
what  the  services  of  the  physician  are  reasonably 

1  Bremerman  v.  Hayes,  9  Super.  Ct.,  8. 

2  Powell  v.  Newell,  59  Minn.,  406. 

3  Henderson  v.  Hall,  87  Ark.,  i.     See  also  Chapter  IX. 


WHO  ARE  LIABLE  FOR  COMPENSATION  91 

worth.1  What  is  the  reasonable  worth  of  the  services 
is  for  the  jury  to  determine  under  all  the  circum- 
stances of  the  case. 

(2)  For  Fees  of  Consulting  Physician. — A  physician 
who  is  called  to  a  consultation  by  an  attending  phy- 
sician   for    his    own    benefit    in    accordance    with    an 
agreement  between  the  latter  and  his  employer  that 
the  attending  physician  shall  pay  the  expense  of  the 
consultation    can    recover    for    his   services    from    the 
employer  under  an  implied  contract,  notwithstanding 
the  agreement.2 

(3)  For  Emergency  Services  Rendered  While   Uncon- 
scious.— It  is  well  settled  that  an  insane  person,  an 
idiot,  or  a  person  utterly  bereft  of  all  sense  and  reason 
by  a  sudden  stroke  of   accident   or   disease   may  be 
held  liable,  in  assumpsit,  for  necessaries  furnished  to 
him   in   good    faith    while   he   is  in   that  unfortunate 
and  helpless  condition.     And  the  reasons  upon  which 
this  rest  are  too  broad,  as  well  as  too  sensible  and 
humane,  to  be  overborne  by  any  deductions  which  a 
refined  logic  may  make  from  the  circumstances  that  in 
such  cases  there  can  be  no  contract  or  promise,   in 
fact,   no  meeting  of  the  minds  of  the  parties.     The 
cases  put  it  on   the  ground  of  an   implied  contract; 
and  by  this  is  not  meant  an  actual  contract,  but  a 
contract  and  promise  said  to  be  implied  by  the  law. 
Hence,  physicians  may  recover  for  emergency  services 
rendered  one  while  unconscious.3 

(4)  Liability  of  Infants. — There  are  some  contracts 
manifestly  for  the  benefit  of  the  infant  where  it  would 

1  Dickey's  Succession,  41  La.  Ann.,  1010;  6  So.,  798;  Prince  r.  McRae, 
84  N.  C.,  674. 

1  Shelton  v.  Johnson,  40  Iowa,  84;  Sherman's  Estate,  6  Pa.  Co.  Ct.,  225; 
Garry  v.  Stadler,  67  Wis.,  512;  30  N.  W.,  787. 

1  Sceva  v.  True,  53  N.  H.,  627;  Cotman  v.  Wisdom,  83  Ark.,  601;  Boyd  r. 
Sappington,  4  Watts,  247;  Starrett  v.  Miley,  79  111.  App.,  658. 


92  COMPENSATION     . 

be  detrimental  to  his  interests  not  to  be  bound  by 
them.  Such  contracts  the  law  holds  as  binding  as 
contracts  between  adults.  These  contracts  have  to 
do  with  the  existence  and  proper  maintenance  of  the 
infant,  and  he  might  suffer  severely  if  he  could  not 
pledge  his  credit  for  the  supply  of  necessaries  to 
himself. 

"Necessaries"  in  the  technical  sense  means  such 
things  as  are  necessary  to  the  support,  use,  or  comfort 
of  the  person  of  the  minor,  as  food,  raiment,  medical 
attention,  etc. 

It  has  been  held  that  even  though  a  parent  is  unable 
to  supply  medical  attention  to  a  child  living  with 
him  the  child  will  not  be  liable  on  his  own  contract. 
The  court  said:  "When  necessary  professional  services 
are  rendered  to  a  minor  son  residing  in  the  house  of 
his  father,  the  legal  inference  is  that  the  father  is 
the  person  liable  therefor.  .  .  .  No  implication 
can  arise  against  a  minor  residing  with  his  father 
and  delivering  over  to  him  his  wages,  that  he  promised 
to  pay  for  it."  A  physician  does  not  necessarily  have  to 
prove  an  express  contract  with  an  infant  for  neces- 
saries furnished  him;  it  is  sufficient  if  it  is  shown  that 
the  necessaries  were  in  fact  furnished  him  and  enjoyed 
by  him. 

(b)  Liability  of  Third  Persons. — (i)  In  General.— 
In  order  that  a  physician  may  maintain  an  action 
against  a  third  party  to  recover  for  professional  ser- 
vices rendered  another,  he  must  show  a  promise  by 
such  third  party,  either  express  or  implied,  to  pay 
therefor.1 

(2)  Liability  of  Husband  for  Attendance  upon 
Wife. — It  is  an  unquestionable  rule  of  law  that  a 
husband  is  bound  to  provide  his  wife  with  necessary 

1  Crane  v.  Baudouine,  55  N.  Y.,  256. 


WHO  ARE  LIABLE  FOR  COMPENSATION  93 

lodging,  clothing,  and  subsistence,  and,  in  case  of 
her  sickness,  medicines  and  medical  attendance; 
and  if  he  fails  to  make  such  provision  she  may  obtain 
the  same  on  his  credit,  and  the  person  so  making 
it  may  sue  the  husband  and  recover  therefor.1  When 
a  physician  is  employed  to  attend  upon  a  sick  wife 
his  employment  continues  while  the  sickness  lasts, 
and  the  relation  of  patient  continues  unless  it  is  put 
an  end  to  by  the  assent  of  the  parties,  or  is  revoked 
by  the  express  dismissal  of  the  physician.2  And  a 
husband  is  liable  for  medical  services  rendered  the 
wife,  at  her  request,  while  the  two  are  living  apart 
under  an  agreement  that  the  wife  should  have  an 
allowance  for  support  if  the  physician  had  no  knowl- 
edge of  such  matter.3  The  right  ceases,  however, 
with  divorce. 

(3)  Liability  of  Wife  for  Attendance  upon  Husband. 
-The  later  cases  seem  to  hold  that  if  a  husband  is 

penniless  and  the  wife  has  property  she  can  be  made 
to  provide  him  with  necessaries.  The  liability  of  a 
widow  for  medical  services  rendered  her  husband  in 
his  last  sickness,  under  a  statute  binding  the  property 
of  both  equally  for  such  family  expenses,  is  not  dis- 
charged by  failure  to  present  a  claim  therefor  against 
the  estate  of  the  husband  in  time  to  hold  it,  since 
husband  and  wife  are  made  liable  as  principals  by  the 
statute.4 

(4)  Liability  of  Parent  for  Attendance  upon  Child.— 
The  true   rule,  both    in    reason    and    on    principle,  is 
that  a  parent  is  legally,  as  well  as  morally,  bound  to 
provide  medical  attention  for  his  children,  if  they  are 
unable  to  care  for  themselves,  and  if  he  is  able  to  do 

1  Washburn  p.  Washburn,  9  Cal.,  475. 
1  Potter  r.  Virgil,  67  Barb.,  578. 
1  Lawrence  p.  Brown,  91  Iowa,  342. 
1  Vest  v.  Kramer  (Iowa),  114  N.  W.,  886. 


94  COMPENSATION 

so;  and  if  he  neglects  so  to  do,  and  another  performs 
the  duty  for  him,  even  against  his  wish  or  directions, 
he  may  recover  therefor  from  the  father  without 
regard  to  any  idea  of  a  contract  in  fact.  There  are 
numerous  cases  in  favor  of  this  view  which  we  deem 
too  many  to  cite  for  the  purpose  of  this  book.  Some 
of  the  cases  seem  to  recognize  that  there  is  only  a 
moral  obligation  on  the  part  of  the  parent  to  furnish 
such  services,  but  that  this  moral  obligation  is  suffi- 
cient to  impose  the  legal  liability  for  necessaries  upon 
the  parent;  but  the  right  and  proper  ground  upon 
which  the  parent  should  be  held  liable  is  that  it  is 
a  legal  obligation.  Thus  it  has  been  held  that  a 
father  is  legally  liable  to  a  physician  for  the  latter's 
services  in  professionally  treating  the  minor  daughter 
of  said  father,  dangerously  attacked  with  typhoid 
fever,  who  at  the  date  of  the  treatment  was  seventeen 
years  old  and  was  then  and  had  been  residing  away 
from  her  father's  house  for  three  years  prior  to  the 
rendition  of  such  services,  earning  and  controlling 
her  own  wages,  and  providing  herself  with  clothing, 
at  a  place  thirty  miles  distant  from  her  father's  place 
of  residence,  the  father  not  furnishing  or  agreeing 
with  his  daughter  to  furnish  her  with  any  money 
or  means  of  support  but  consenting  to  her  absence 
from  home;  even  though  rendered  at  the  request  of 
the  daughter  and  furnished  without  the  knowledge 
or  consent  of  the  father.1  But  a  surgical  operation 
of  doubtful  success  upon  a  child  has  been  held  not 
to  be  a  necessity  for  which  a  non-assenting  father 
is  liable,  upon  an  order  given  to  the  surgeon  by  the 
wife.2  There  is  a  conflict  of  authority  on  the  question 
of  the  duty  of  a  mother,  who  is  a  widow,  to  maintain 

1  Porter  v.  Powell,  la. 

2  Detwiler  v.  Bowers,  9  Super.  Ct.,  473. 


WIIO  ARE  LIABLE  FOR  COMPENSATION  95 

her  minor  children.  In  some  States1  it  has  been  held 
that  she  is  liable;  in  others2  the  contrary  is  held. 
A  step-father  is  not  obliged  to  furnish  necessaries  to 
his  step-children.3  It  has  been  held  that  the  father's 
duty  of  maintenance  does  not  pass  to  the  mother 
on  divorce.4  In  some  States  the  mother  may  recover 
from  the  father  for  necessaries  furnished  by  her  if 
the  divorce  was  for  his  aggression,5  but  not  if  granted 
for  her  aggression.6  The  obligation  on  the  part  of 
the  parent  to  furnish  medical  services  to  the  child 
continues  until  the  child  is  in  a  condition  to  provide 
for  its  own  maintenance  and  no  farther.  The  legal 
obligation  ceases,  except  under  some  statutes,  as  soon 
as  the  child  reaches  the  age  of  majority,  however 
helpless  he  may  be,  and  however  wealthy  the  father 
may  be.7  A  physician  cannot  recover  from  a  father  for 
services  rendered  an  adult  daughter  at  her  request, 
although  she  resides  with  him  as  a  part  of  his  family.8 
Neither  can  a  physician  recover  for  medical  services 
rendered  a  child  who  had  been  taken  into  the  defend- 
ant's family.9 

(5)  Liability  of  Child  for  Attendance  upon  Parent. — 
A  child  is  under  no  legal  obligation  at  common  law 
to  support  his  parents,  even  though  they  are  destitute 
and  infirm.  There  is  a  strong  moral  obligation,  but 
no  such  duty  is  recognized  by  the  law,  unless,  as  is 
the  case  in  some  jurisdictions,  the  duty  is  expressly 


1  So  held  in  Connecticut,  Missouri,  and  New  York. 
1  Alabama,  Illinois,  Massachusetts,  and  Minnesota. 
1  Bloomfield  Twp.  p.  Chagrin  Twp.,  5  Ohio,  315. 

4  Conn.  v.  Conn.,  57  Ind.,  323;  Courtright  r.  Courtright,  40  Mich.,  633; 
Thomas  v.  Thomas,  41  Wis.,  229. 

1  Pretzinger  v.  Pretzinger,  45  Ohio  St.,  452. 

•  Fulton  v.  Fulton,  52  Ohio  St.,  229. 

7  2  Kent.  Comm.,  190,  191. 

8  Blachley  v.  Laba,  63  Iowa,  22. 

•  Holmes  v.  McKim,  109  Iowa,  245;  80  N.  W.,  329. 


96  COMPENSATION 

imposed  by  statute.  While  they  are  entitled  to  the 
child's  wages  during  its  minority,  the  relation  which 
the  child  bears  to  them  imposes  no  legal  duty  of 
maintenance,  and  no  promise  on  the  part  of  the  child 
to  pay  even  for  necessaries  furnished  them  will  be 
implied.  In  some  States  it  is  made  the  duty  of  children 
of  any  poor  person  unable  to  maintain  himself  to 
maintain  such  person  to  the  extent  of  their  ability. 
Generally,  a  mode  of  enforcing  such  liability  is  pre- 
scribed by  statute.  If  no  mode  is  provided,  one  who 
renders  medical  services  to  a  person  within  the  terms 
of  the  statute,  whose  son,  though  able,  neglected  and 
refused  to  maintain  him,  may  recover  therefor  from 
the  son. 

It  has  been  held  in  a  New  York  case  that  a  son  who 
summoned  a  physician  to  attend  his  father  without 
disclosing  that  he  acted  as  agent  is  liable  for  the 
services  rendered.1  The  New  York  case,  however, 
hinged  on  the  manner  in  which  the  request  was  made: 
"Doctor,  I  want  you  to  come  and  attend  my  father;" 
not  that  the  father  wanted  the  doctor  to  come,  or 
that  the  son  was  acting  as  messenger.  In  a  Kansas 
case  a  son  came  to  a  physician  and  called  for  his 
services,  without  specifying  to  whom  or  on  whose 
account  they  were  rendered.  The  physician  went 
to  his  house  and  treated  the  father,  who  was  at  that 
time  a  member  of  his  son's  household,  expecting  the 
son  to  pay  for  the  services.  Later  he  presented  the 
bill  to  the  son,  who  promised  to  pay  it,  but  later 
refused  to  do  so  on  the  ground  that  he  was  not  liable 
for  services  performed  for  his  father.  The  court 
in  rendering  its  opinion  said:  "It  is  true  the  person 
to  whom  the  services  were  rendered  was  an  adult 
person,  the  father  of  the  defendant,  and  only  tempo- 

1  Foster  v.  Mccks,  18  Misc.,  461. 


WHO  ARE  LIABLE  FOR  COMPENSATION  97 

rarily  a  member  of  the  defendant's  family.  But, 
prima  facie,  the  head  of  a  family  is  responsible  for 
all  debts  which  he  contracts  for  any  member  of  the 
family.  If  the  son  called  the  physician  to  render 
service  to  any  member  of  the  family,  the  latter  has  a 
right  to  look  to  the  former  for  his  compensation,  in 
the  absence  of  notice  that  someone  else  was  responsible; 
and  while  a  child  may  be  under  no  legal  obligation 
to  support  an  aged  parent,  yet  if  he  does  receive  him 
into  his  family  he  is,  prima  facie,  responsible  for  ser- 
vices which  he  calls  upon  strangers  to  perform  for  the 
benefit  of  such  parent." 

(6)  Liability  of  Son-in-law  for  Attendance  on  Mother- 
in-law. — The  facts  that  a  son-in-law  was  at  the  bed- 
side of  his  dying  mother-in-law,  rendering  such  services 
as  he  could,  that  he  knew  the  physicians  who  were 
attending  her,  and  said  nothing,  have  been  held  insuf- 
ficient to  render  him   liable  for   their  services,   there 
being  no  evidence  that  he  employed  or  acquiesced  in 
the  employment  of  the  physicians  who  subsequently 
sued  him  therefor.     Especially  is  this  true  where  the 
estate  left  by  the  patient  was  amply  sufficient  to  pay 
such  charges.     Of  course,  if  the  son-in-law  promised 
at  the  time,  expressly  or  impliedly  to  pay  for  such 
services  he  would  be  liable  on  such  promise.1 

(7)  Liability  of  Brother  for  Attendance  upon  Brother. 
—A  brother  is  not  liable,  as  such,  for  services  rendered 
by  a  physician  to  a  brother,  even  though  the  brother 
for  whom  the  services  were  rendered  was  insane  at  the 
time.2 

(8)  Liability  of  Master  for  Attendance  upon  Servant. 
— An  employer  who  merely  summons  a  physician  and 
requests  him  to  care  for  an  employee  who  has  suddenly 

1  Madden  v.  Blain.  66  Ga.,  49. 
1  Smith  p.  Watson,  14  Vt.,  332. 


98  COMPENSATION 

become  ill  while  engaged  in  his  duties,  and  has  been 
thereby  rendered  incapable  of  acting  for  himself,  is 
not,  in  the  absence  of  an  express  agreement  between 
the  employer  and  the  employee  that  the  former  shall 
furnish  medical  aid  to  the  latter,  liable  for  the  services 
of  the  physician  rendered  under  such  circumstances.1 
In  the  days  of  slavery,  it  was  said  "When  one  white 
man  employs  another  to  work  for  him,  it  is  not  an 
implication  or  incident  that  the  employer  shall  pay 
the  employee's  physician's  bills;  it  would  require  an 
express  contract  to  create  that  obligation."  There 
are  authorities  which  hold  parties  liable  in  certain 
emergencies  for  the  acts  of  their  managers  or  foremen 
in  employing  physicians.  These  authorities,  however, 
go  no  farther  than  to  hold  the  parties  liable  for  the 
immediate  services  made  necessary  by  a  present 
urgency.  Authority  to  act  is  implied  from  the  necessity 
of  the  case.2  Neither  the  authorities  nor  reason 
carry  the  rule  beyond  the  emergency.  Such  employ- 
ment does  not  make  the  employer  liable  for  the  services 
rendered  by  the  physician  to  the  employee  after  the 
emergency  has  passed.  If  the  physician  desires  to 
hold  the  employer  responsible  for  subsequent  services, 
he  must  make  a  special  contract  with  him.  The  cases 
cited  below,  and  others,  are  those  in  which  the  employ- 
ment is  hazardous,  exposing  the  employees  to  dangers 
and  risks  greater  than  those  in  the  ordinary  pursuits 
of  life.  For  example:  "Railroad  companies  occupy 
a  peculiar  position  with  reference  to  such  matters, 
exercising  quasi-public  functions,  clothed  with  extraor- 
dinary privileges,  carrying  their  employees  necessarily 

1  Norton  v.  Rouke,  130  Ga.,  600;  61  S.  E.,  478;  Jesserich  v.  Walruff,  51 
Mo.  App.,  270;  Smith  v.  Watson,  14  Vt.,  332. 

2  St.  Louis,  A.  &  T.  R.  Co.  v.  Hooves,  53  Ark.,  377;  Southern  R.  Co.  ». 
Loughridge,  65  Ark.,  300;  Terre  Haute  &  I.  R.  Co.  v.  McMurray,  98  Ind., 
358;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Smith,  121  Ind.,  353. 


WHO  ARE  LIABLE  FOR  COMPENSATION  99 

V 

to  places  remote  from  their  homes,  subjecting  them 
to  unusual  hazards  and  dangers.  The  law  has  by 
reason  of  the  dictates  of  humanity  and  the  necessities 
of  the  occasion,  imposed  upon  such  companies  the 
duty  of  providing  for  the  immediate  and  absolutely 
essential  needs  of  injured  employees  when  there  is  a 
pressing  emergency  calling  for  their  immediate  action. 
'In  such  cases  even  subordinate  officers  are  sometimes, 
for  the  time  being,  clothed  with  the  powers  of  the 
corporation  itself  for  the  purposes  of  the  immediate 
emergency,  and  no  longer."1  As  has  been  said  by 
the  highest  court  in  Kansas  on  more  than  one  occa- 
sion: 'There  is  no  legal  obligation  resting  upon  the 
company  to  provide  medical  or  surgical  care  for  those 
who  have  been  injured  in  its  service,  but  the  ground 
upon  which  the  authority  of  the  superintendent  to 
make  such  contracts  is  inferred  is  that  it  is  a  reason- 
able thing  for  the  company  to  provide  for  the  care 
and  cure  of  persons  who  are  engaged  in  the  hazardous 
employment  of  railroading."2  It  seems,  however, 
that  there  is  nothing  to  prevent  the  master  from  fur- 
nishing medical  aid  if  he  wishes  to.  Thus  a  railroad 
company  may  be  held  liable  for  services  rendered 
an  injured  employee,  where  he  was  called  in  by  the 
station  agent,  if  upon  due  notice  given  to  the  general 
superintendent  the  act  is  not  repudiated.3  So  the 
master  is  liable  for  medical  attendance  which  he 
secures  himself.4  A  promise  to  pay  for  medical  services 
engaged  by  an  employee  without  any  authority  for 
the  benefit  of  a  third  person,  when  accompanied  by 
a  denial  of  any  liability,  does  not  constitute  a  ratifica- 

1  Chaplin  v.  Freeland,  7  Ind.  App.,  676,  34  N.  E.,  1007. 
1  Union  Pac.  R.  Co.  v.  Beatly,  35  Kan.,  265;  Union  Pac.  R.  Co.  P.  Winter- 
botham,  52  Kan.,  433. 

»  Toledo  W.  &  W.  R.  Co.  v.  Prince,  50  111.,  26. 
4  Clark  v.  Waterman,  7  Vt.,  76. 


100  COMPENSATION 

tion,  but  is  a  mere  promise  to  pay  the  debt  of  another, 
which  is  void  under  the  statute  of  frauds;1  and  a  mere 
promise  by  an  employer  to  pay  for  services  previously 
rendered  an  employee  or  servant  is  not  binding  on 
the  employer. 

(9)  Illustrations  of  Liability  or  Non-liability  of 
Master  for  Attendance  on  Servant. — Upon  the  trial  of 
a  case  brought  by  a  physician  in  Missouri  against 
a  cooperage  company  for  compensation  for  services 
rendered  to  an  injured  employee,  the  court  of  appeals, 
in  rendering  its  opinion  as  to  whether  the  company 
could  be  held  liable  for  the  physician's  fees  because 
of  the  fact  that  the  superintendent  of  the  company 
sent  a  messenger  summoning  him  to  the  works  of 
the  company  to  attend  such  employee,  said:  "We 
take  it  that  the  law  will  not  imply,  upon  this  evidence, 
a  contract  either  on  the  part  of  the  corporation  or 
on  the  part  of  Mr.—  -  (the  superintendent)  to  pay 
for  these  services.  The  general  rule,  no  doubt,  is  that 
where  a  person  requests  the  performance  of  a  service, 
and  the  request  is  complied  with  and  the  services 
performed,  the  law  raises  an  implied  promise  to  pay 
the  reasonable  value  of  the  services.  But  this  implica- 
tion does  not  obtain  where  one  person  requests  a 
physician  to  perform  services  for  a  patient  unless 
the  relation  of  the  person  making  the  request  to  the 
patient  is  such  as  to  raise  a  legal  obligation  on  his 
part  to  call  in  the  physician  and  pay  for  the  services. 
Where  a  husband  calls  in  a  physician  to  attend  upon 
his  wife,  or  where  a  father  calls  in  a  physician  to 
attend  upon  his  minor  child,  the  law  implies  a  promise 
on  his  part  to  pay  the  reasonable  value  of  the  services, 
because  there  is  a  legal  obligation  on  his  part,  in 
either  case,  to  furnish  necessaries  for  the  benefit  of  the 

1  Holmes  v.  McAllister,  123  Mich.,  493. 


WHO  ARE  LIABLE  FOR  COMPENSATION          101 

patient.  But  no  such  implication  arises  where  one 
calls  in  a  physician  to  attend  upon  a  stranger,  or 
upon  one  to  whom  he  is  under  no  legal  obligations."1 
An  employer  is  not  liable  for  the  services  of  a  physician 
summoned  by  his  manager  or  foreman  to  attend  to 
an  employee  in  case  of  an  injury  by  accident  in  a 
laundry  during  the  employer's  absence.2 

(10)  Illustrations  of  Liability  of  Railroads  for  Attend- 
ance on  Employee. — As  an  illustration  of  the  law  that 
a  railroad  company  cannot  escape  liability  for  medical 
services  rendered  an  injured  employee  by  setting 
up  the  lack  of  authority  of  its  president  or  general 
superintendent,  we  quote  an  extract  from  the  opinion 
of  Justice  Elliott  of  the  Supreme  Court  of  Indiana: 
"It  would  be  unreasonable  to  require  a  surgeon  to 
give  professional  assistance  to  a  person  injured  by 
the  company's  trains,  and  then  deny  him  compensa- 
tion upon  the  ground  that  the  superintendent  had 
no  authority  to  employ  him  because  that  authority 
was  lodged  in  a  chief  surgeon.  Nor  are  we  willing 
to  sanction  a  rule  imposing  upon  the  surgeons  whose 
services  are  requested  by  the  superintendent  the 
duty  of  making  specific  inquiry  as  to  the  scope  of 
the  superintendent's  authority.  Such  a  rule  would 
operate  harshly  in  many  cases,  for  if  the  surgeon 
must  stop  to  make  inquiries  before  leaving  his  home 
or  office  the  injured  man  might  perish.  Better,  rail- 
road companies  should  be  held  responsible  for  the 
acts  of  such  a  high  officer,  although  as  between  him 
and  his  principal  that  officer  may  usurp  authority 
that  is  vested  in  a  subordinate  agent,  than  that  a 
surgeon  who  obeys  the  summons  of  a  superintendent 
should  be  compelled  to  go  unpaid."3 

1  Meisenbach  v.  Southern  Cooperage  Co.,  45  Mo.  App.,  232. 

*  Holmes  v.  McAllister,  123  Mich.,  493. 

»  Cincinnati,  I.,  St.  L.  &  Chi.  Ry.  Co.  v.  Davis,  126  Ind.,  99;  25  N.  E.,  878. 


102  COMPENSATION 

(n)  Liability  of  Vessels  for  Attendance  upon  Seamen. 
—The  right  of  seamen  to  be  cured  of  sickness,  or  any 
injury  received  in  the  ship's  service,  at  the  expense 
of  the  ship  is  a  rule  regarded  in  the  maritime  law  as 
forming  part  of  the  contract,  and  the  decisions  of  the 
courts  of  the  United  States  and  of  the  States  sanction 
the  rule.1 

(12)  Liability  of  Party  Who  Summons  Physician  — 
A  stranger  summoning  a  physician  to  care  for  another 
unable  to  act  for  himself  is  not  liable  as  upon  an 
implied  contract  for  the  reasonable  value  of  the 
services  so  rendered.2  "When  a  person  is  dangerously 
wounded,  and  perhaps  unable  to  speak  for  himself, 
or  suffering  so  much  that  he  does  not  know  how  to 
do  it,  any  person  will  run  to  the  nearest  surgeon  in 
the  performance  of  an  ordinary  office  of  humanity. 
If  it  were  the  law  that  the  person  so  going  for  the 
surgeon  thereby  undertakes  to  become  personally 
liable  for  the  surgeon's  bill,  and  especially  for  the 
surgeon's  bill  through  the  long  subsequent  course 
of  treatment,  many  would  hesitate  to  perform  this 
office,  and  in  the  meantime  the  sufferer  might  die 
for  the  want  of  the  necessary  immediate  attention."3 
In  the  case  of  Starrett  v.  Miley,  79  111.  App.,  658,  a 
woman  who  was,  so  far  as  appears  from  the  report 
of  the  facts,  a  stranger  to  Starrett,  ran  into  his  house, 
wounded  and  bleeding,  and  fell  there  unconscious. 
He  at  once  called  in  Miley,  a  physician,  and  directed 
him  to  the  injured  woman  and  told  him  to  care  for 
her.  Starrett  also  had  her  carried  to  a  room  in  his 
house.  No  express  promise  was  made  by  him  to 

1  Holt  v.  Cummings,  102  Pa.  St.,  212. 

2  Cotnam  v.  Wisdom,  83  Ark.,  601;  104  S.  W.,  164;  Pray  v.  Stinsom,  21 
Me.,  402. 

8  Raoul  v.  Newman,  59  Ga.,  408;  Meisenbach  v.  Southern  Cooperage  Co., 
45  Mo.  App.,  232;  Meyer  v.  Supreme  Lodge  K.  R.,  178  N.  Y.,  63. 


WHO  ARE  LIABLE  FOR  COMPENSATION          103 

pay  the  physician  for  the  services  rendered  the  woman. 
It  was  held  that  Starrett  was  not  liable  for  the  physi- 
cian's services.  And  in  the  case  of  Williams  v.  Brickell, 
37  Miss.,  682,  where  the  proprietor  of  a  summer  hotel 
in  which  yellow  fever  suddenly  broke  out  sent  a  tele- 
gram saying:  "There  are  many  cases  of  yellow  fever 
at  the  Well;  send  out  a  physician  this  afternoon  with- 
out fail."  It  was  held  that  the  hotel  proprietor  did 
not  thereby  render  himself  liable  to  the  physician 
who  attended  the  patients.  But  it  has  been  held  that 
where  a  person  called  at  the  office  of  a  physician,  and 
in  the  absence  of  the  latter  left  his  business  card  with 
"call  on  Mrs.  D—  -  at  No.  767  Broadway"  written 
upon  it,  with  a  clerk  in  the  office,  requesting  him  to 
hand  it  to  the  physician  and  to  tell  him  to  "come  as 
soon  as  possible,"  such  person  is  liable  for  the  physi- 
cian's bill  in  attending  such  patient  in  response  to 
the  message.1  The  defendant  in  the  case  just  cited 
relied  on  a  prior  New  York  case;  but  the  court  said: 
"In  that  case  the  defendant  exhibited  to  and  left 
with  the  plaintiff  a  telegram  he  had  received,  which, 
as  well  as  the  other  facts  and  circumstances,  clearly 
showed  that  he  only  acted  as  the  agent  of  another 
party.  In  the  case  at  bar,  on  the  other  hand,  there 
was  nothing  on  the  card  to  indicate  to  the  physician 
before  he  rendered  the  services  that  the  defendant  had 
called  at  his  office  at  Mrs.  D—  -'s  request,  and  that 
he  was  therefore  only  acting  as  her  messenger.  The 
defendant  might  very  readily  have  screened  himself 
from  all  liability  by  simply  writing  the  memorandum 
on  a  blank  card,  or  adding  to  that  which  he  wrote 
on  his  own  card  something  that  would  have  apprised 
the  physician  of  the  fact  that  he  acted  in  the  trans- 
action as  her  agent.  Having  neglected  to  do  this, 

1  Bradley  r.  Dodge.  45  How.  Pr.,  57. 


104  COMPENSATION 

the  physician  was,  under  the  circumstances,  justified 
in  believing  that  he  was  employed  and  would  be 
paid  by  the  defendant."  And  when  one  calls  upon 
a  physician  and  says:  "Doctor,  I  want  you  to  come 
and  attend  my  father;  he  had  a  doctor  who  was  not 
satisfactory,"  he  will  be  liable  for  the  services  rendered 
by  the  doctor  in  pursuance  to  such  request.1 

(13)  Liability  of  Corporations  Where  Physician  is 
Summoned  by  Agent. — A  physician  who  deals  with  an 
agent  of  a  corporation  is  bound  to  know  the  extent 
of  such  agent's  authority.  To  do  this,  a  physician 
should  immediately  upon  being  employed  by  an 
officer  or  an  agent  of  a  corporation  to  render  services 
for  some  person  injured  by  such  company,  write  to 
some  officer  who  has  power  to  make  such  a  contract, 
telling  him  that  he  has  been  employed  by  an  inferior 
or  subordinate  agent  of  the  company  and  that  he  has 
undertaken  the  treatment  of  the  patient  on  behalf 
of  the  company  and  expects  it  to  pay  him  for  his 
services;  and  asking  that  the  company  notify  him 
at  once  as  to  their  position  in  the  matter.  A  failure 
of  the  company  to  answer  will  amount  to  a  ratifica- 
tion and  holds  them  liable  for  the  services  rendered. 
The  letter  should  be  addressed  to  the  president, 
general  superintendent,  or  general  manager  of  the 
company,  as  it  is  well  settled  that  these  officers  have 
authority  to  employ  a  physician  or  surgeon  to  attend 
not  only  its  injured  employees  but  those  to  whom  the 
company  is  liable  for  personal  injuries.  But  it  has 
been  held  in  Ohio  that  a  superintendent  of  a  railroad 
company  has  no  power  unless  specially  invested  with 
authority  for  that  purpose,  to  employ  a  physician  and 
bind  the  company  for  payment  therefor  in  attending 

1  Foster  v.  Meeks,  18  Misc.,  N.  Y.,  461. 


WHO  ARE  LIABLE  FOR  COMPENSATION          105 

a  passenger  injured  on  the  road.1  Where  the  con- 
ductor of  a  street  railway  car  brings  an  injured 
person  to  the  office  of  a  physician  and  directs  him  to 
attend  such  person  the  railway  company  is  not  liable 
to  pay  for  the  services,  in  the  absence  of  any  evidence 
to  show  authority  on  the  part  of  the  conductor  to 
bind  the  company  in  such  a  case,  or  to  show  a  serious 
or  sudden  emergency.2  And  it  is  pretty  well  settled 
that  a  conductor,  section  boss,  or  station  agent  of  a 
railroad  company  are  without  authority  to  employ  a 
physician  to  treat  a  person  injured  by  their  company. 
(14)  Liability  of  Counties,  Towns,  etc.,  for  Medical 
Services  to  Indigent  Persons. — The  duty  to  care  for 
paupers  being  purely  statutory  it  necessarily  follows 
that  the  liability  of  counties  and  towns  for  medical 
aid  rendered  to  such  persons  is  governed  by  the  statu- 
tory requirements  of  the  different  States.  The  statutes 
in  nearly  all  of  the  States  provide  in  general  terms 
for  the  furnishing  of  aid  to  these  unfortunates,  leaving 
to  the  local  officers  the  duty  of  discerning  whether  or 
not  aid  is  to  be  furnished  in  the  particular  case  and  if 
so  to  what  extent  relief  will  be  granted;  hence,  these 
municipal  corporations  are  not  liable  unless  there  is 
a  contract  to  that  effect,  or  the  services  are  rendered 
at  the  request  of  the  official  whose  duty  it  is  to  make 
such  agreement.  In  Arkansas  it  has  been  held  that 
the  statutes  for  the  aid  of  the  poor  implied  no  promise 
by  the  county  to  pay  for  services  rendered  by  a  physi- 
cian or  surgeon,  even  in  cases  of  emergency,  if  there 
has  been  no  judicial  ascertainment  that  the  person 
treated  is  a  pauper;  it  being  presumed  that  a  physi- 
cian's or  surgeon's  services  to  the  poor  and  indigent 
are  bestowed  as  a  charity,  or  that  he  looks  to  the 

1  Columbia  Street  Ry.  Co.  v.  Wiseman,  I  C.  D.,  134. 

1  Patterson  v.  Consolidated  Traction  Co.,  48  Pitts.  L.  J.,  4. 


106  COMPENSATION 

patient  for  his  pay,  and  when  such  is  his  intent  he 
cannot  afterward  charge  the  county  with  liability.1 
In  Illinois  it  has  been  held  that  a  physician  who  has 
rendered  medical  aid  to  a  person  coming  within  the 
Pauper  Act,  must,  in  order  to  recover  from  the  county 
upon  an  implied  assumpsit,  show  notice  to  the  overseer 
of  the  poor  of  the  necessity  for  the  rendition  of  the 
services  and  a  refusal  or  neglect  by  him  to  act.2  In 
Massachusetts,  "towns  are  under  no  moral  obligation 
to  pay  for  the  support  or  cure  of  paupers,  especially 
of  such  as  have  their  legal  settlement  in  other  towns. 
The  legal  obligation  is  created  by  statute,  and  it 
exists  and  can  be  enforced  only  according  to  the 
provisions  of  the  statute.  The  town  is  answerable 
to  an  individual  only  when  the  overseers  have  been 
applied  to  and  until  they  shall  furnish  the  supply.3 
In  Nebraska  it  has  been  held  that  a  physician  who 
without  any  solicitation  or  direction  of  anyone  having 
authority  to  create  an  indebtedness  against  the  county, 
and  before  any  application  had  been  made  to  the 
overseers  of  the  poor  or  to  the  county  board  for  aid, 
attended  for  about  a  month  a  non-resident  indigent 
person  who  fell  sick  within  the  county  while  the 
county  board  was  in  session,  cannot  recover  of  the 
county  the  value  of  the  services.4  In  North  Carolina 
it  has  been  held  that  in  order  to  render  the  county 
liable  for  services  rendered  an  insolvent  smallpox 
patient  there  must  be  an  express  request  of  the  proper 
county  officer  for  the  rendition  of  such  services.6 
In  Pennsylvania  a  physician  and  surgeon  who  renders 

1  Arkansas — Cantrell  v.  Clark  County,  47  Ark.,  239. 

2  Diffenbacher  v.  County  of  Mason,  117  111.  App.,  103. 

3  Kittredge  v.  Newbury,  14  Mass.,  448. 

4  Hamilton  County  v.  Meyers,  23  Nebr.,  718;  37  N.  W.,  623;  Hamilton 
County  v.  Raben,  23  Nebr.,  723;  37  N.  W.,  626. 

5  Copple  v.  Davie  County,  138  N.  C.,  127;  50  S.  E.,  574. 


WHO  ARE  LIABLE  FOR  COMPENSATION          107 

professional  services  in  a  case  of  emergency  on  the 
credit  of  his  patient  who  fails  to  pay  the  bill,  and  who, 
afterward,  admits  himself  to  be  a  pauper,  cannot 
recover  for  such  services  from  the  directors  of  the 
poor.1  In  Wisconsin  the  supreme  court  of  that 
State  has  said:  'There  is  no  more  reason  for  hold- 
ing that  a  physician  may  aid  a  pauper,  upon  the 
supervisors  of  the  town  in  which  such  pauper  has  a 
legal  settlement  neglecting  their  duty,  and  hold  such 
town  liable  therefor,  than  for  holding  that  one  may 
repair  the  highways  of  a  town  because  its  supervisors 
neglect  their  duty  in  that  respect,  and  recover  of  such 
town  therefor."2  On  the  other  hand,  it  has  been  held 
that  the  county,  town,  or  poor  district  upon  which  is 
imposed  the  duty  to  relieve  indigent  persons  is  liable 
for  medical  aid  furnished  such  persons  without  notice 
to  or  request  from  the  proper  official;  the  reason 
for  the  ruling  being  that  in  the  event  of  non-com- 
pliance with  any  of  the  statutory  requirements  the 
patient  must  suffer  from  typhoid  fever  or  any  other 
malignant  disease,  without  the  relief  of  medical  aid, 
unless  some  humane  physician  should  see  fit  to  render 
his  services  gratuitously;  and  if  one  should  be  stricken 
down  with  apoplexy  on  the  highway,  let  the  physi- 
cian wait  until  the  overseer  could  be  found,  and  an 
order  written  with  ink  and  paper  authorizing  the 
physician  to  assist  to  the  amount  as  might  appear  to 
the  overseer  to  be  sufficient  for  the  emergency.3  Thus 
it  has  been  held  that  the  physician  could  recover  from 
the  county  for  necessary  medical  services  rendered 
by  him  where  prompt  and  immediate  action  was 
required,  without  notice  to  or  permission  from  the 

1  Blakeslee  v.  Chester  County  Directors  of  Poor,  102  Pa.,  274. 

1  Patrick  v.  Town  of  Baldwin,  109  Wis.,  342. 

1  County  of  Fayette  v.  Morton,  53  III.  App.,  552. 


108  COMPENSATION 

overseer  of  the  poor.1  And  a  physician  who  has 
rendered  necessary  services,  in  an  emergency,  to  a 
minor  whose  mother  is  dead  and  whose  father  is  idle 
and  worthless  and  does  not  provide  for  his  children, 
may,  in  the  first  instance,  maintain  an  action  against 
the  county  for  such  part  of  his  bill  as  the  county  is 
liable  to  pay,  although  he  has  property  sufficient  to 
pay  part  of  the  bill.2  A  physician  in  Iowa  who  attended 
poor  persons  afflicted  with  contagious  diseases  at 
the  direction  of  the  mayor  and  presented  his  bill 
for  services  rendered  to  the  local  board  of  health, 
which  they  approved,  was  held  to  be  entitled  to 
reasonable  compensation  for  the  services  from  the 
county,  even  though  the  same  were  performed  with- 
out legal  sanction.3  In  a  Minnesota  case  the  court 
said:  "It  is  true  that  the  obligations  to  provide  for 
the  poor  are  statutory.  These,  as  we  have  indicated, 
are  matters  of  regulation.  But  where  there  can  be 
no  regulation  from  the  very  nature  of  the  case,  it 
must  be  that  necessity  will  supersede  the  exercise 
of  statutory  authority  and  immediate  aid  for  the  sick 
person  should  be  furnished.  A  deprivation  of  it 
might  inure  not  only  to  injure  the  poor  person  but 
to  the  detriment  of  the  public,  for  delay  in  the  treat- 
ment of  the  injured  party  might  entail  added  pecuniary 
burdens."4 

(15)  Effect  of  Statute  of  Frauds  on  Liability  of  Third 
Person. — The  safest  way  to  save  all  question  when 
a  third  person  desires  to  be  responsible  for  services 
rendered  is  to  have  him  put  his  promise  to  pay  in 
writing.  This  is  because  in  most  States  they  have 
a  statute  known  as  the  Statute  of  Frauds,  which 

1  Clinton  County  v.  Pace,  59  111.  App.,  576. 

2  Christian  County  v.  Rockwell,  25  111.  App.,  20. 

3  Hoskins  v.  Woodbury  Co.,  146  Iowa,  165. 

4  Robbins  v.  Homer,  95  Minn.,  201;  103  N.  W.,  1023. 


AMOUNT  OF  COMPENSATION  109 

provides  that  no  action  shall  be  brought  to  charge  a 
person  upon  any  promise  to  answer  for  the  debt  of 
another  unless  it  is  in  writing.  What  form  of  words 
shows  an  intention  to  assume  a  primary  liability  for 
the  debt  of  the  patient  to  the  physician  cannot  be 
determined  in  advance  by  arbitrary  rules.  Promises 
to  "see  that  P.  is  paid,"  that  "P.  will  get  his  pay," 
to  "see  him  through,"  referring  to  the  patient,  are 
held  to  imply  a  promise  to  pay  the  debt  of  another, 
and  the  promise  must  be  in  writing.  But  if  the  third 
party  says,  "Attend  such  a  patient  and  I  will  pay 
you,"  the  promise  is  not  within  the  statute  and  does 
not  need  to  be  in  writing.  Thus  the  expression  "  Doctor, 
I  want  you  to  come  and  attend  my  father,"  has  been 
held  to  render  the  son  personally  liable  for  such  services. 
"The  real  character  of  a  promise  does  not  depend 
altogether  upon  the  form  of  expression  but  largely 
on  the  situation  of  the  parties;  and  the  question 
always  is,  what  the  parties  mutually  understood  by 
the  language,  whether  they  understood  it  to  be  a 
direct  or  a  collateral  promise.1" 


3.  AMOUNT  OF  COMPENSATION 

(a)  Under  Express  Contract. — The  right  of  a  phy- 
sician to  compensation  under  an  express  contract 
for  his  services  is  limited  to  the  amount  agreed  upon 
by  the  parties.2  A  contract  to  pay  a  physician  from 
$200  to  $400  for  the  performance  of  a  surgical  opera- 
tion is  binding  and  valid  for  $200  and  the  value  of 
the  services  up  to  $400  upon  proof  of  such  value.3 

1  Davis  v.  Patrick,  141  U.  S.,  479. 

»  Perry  v.  Woodbury,  44  N.  Y.  St.  Rep.,  287;  Thomas'  Estate,  6  Pa.  Co. 
Ct.,  642. 
1  Doyle  v.  Edwards,  15  S.  D.,  648. 


1 10  COM  PENS  A  TION 

(b)  Under  Implied   Contract. — The  employment  of 
a  physician  without  an  express  agreement  as  to  the 
compensation,  raises  an  implied  contract  to  pay  what 
the  services  are  reasonably  worth.1     Physicians  called 
upon  to  render  services  in  the  physical  examination 
of   one    who    claimed    to    have    been   injured   by   the 
negligence  of  a  railroad   company,   and   whose  claim 
was  subsequently  compromised  without  going  to  trial, 
are   entitled   to   recover   the   value   of   their   services, 
without  enhancement  because  at  the  time  they  were 
rendered   it  was  supposed   that  they   might  have   to 
attend  court  as  witnesses.2    In  a  case  where  the  testi- 
mony showed  that  the  physician,  while  he  attended 
his  brother,  at  whose  house  he  was  living  as  a  member 
of  the  family,  did  not  devote  all  his  time  to  his  brother, 
it  was  held  that  he  could  not  recover  for  brotherly 
attentions    given    his*  deceased    brother.      The    court 
saying:      "The   most   the   claimant   is   entitled    to   is 
to  be  paid  for  the  professional  visits  made,  and  the 
number  of  operations  performed  by  him,  at  the  usual 
rate    of    practising    physicians."3      A    physician    who 
informed   his   brother   that   his   charge   for   attending 
him  would  be  merely  nominal,  will  not  be  permitted 
to   recover   an   excessive   amount   from   the   brother's 
estate  after  his  decease.4 

(c)  As   Affected  by  the   Patient's   Financial   Condi- 
tion.— There    is    a   conflict    in    the    authorities    as    to 
whether  it  is  proper  to  prove  the  value  of  the  estate 
of  a  person  for  whom  medical  services  were  rendered 
or    the    financial    condition    of    the    person    receiving 
such    services.5      In    some   jurisdictions    the    financial 

1  Peck  v.  Martin,  17  Ind.,  115. 

2  Henderson  v.  Hall,  87  Ark.,  i. 

3  In  re  Moffett's  Estate,  32  Leg.  Int.  (Pa.),  218. 

4  Trites'  Estate,  14  Phila.,  248. 

6  Cotnam  v.  Wisdom,  83  Ark.,  601;  104  S.  W.,  164. 


AMOUNT  OF  COMPENSATION  111 

condition  of  the  patient  cannot  be  considered,1  except 
there  is  evidence  proving  that  it  was  customary  for 
physicians  to  graduate  their  charges  by  the  ability 
of  the  patient  to  pay.2  In  Robinson  v.  Campbell, 
47  Iowa,  625,  it  was  said:  "There  is  no  more  reason 
why  this  charge  should  be  enhanced  on  account  of 
the  ability  of  the  defendants  to  pay,  than  that  the 
merchant  should  charge  them  more  for  a  yard  of 
cloth,  or  the  druggist  for  filling  a  prescription,  or  a 
laborer  for  a  day's  work."  On  the  other  hand,  it  has 
been  held  by  the  courts  in  some  States  that  the  financial 
condition  of  the  patient  may  be  considered.3  What- 
ever may  be  the  true  principle  governing  this  matter 
in  contracts,  the  financial  condition  of  a  patient 
cannot  be  considered  where  there  is  no  contract  and 
recovery  is  sustained  on  a  legal  fiction  which  raises 
a  contract  in  order  to  afford  a  remedy  which  the 
justice  of  the  case  requires.4 

(d)  As  Affected  by  Nature  of  Ailment. — It  may  be 
seen  at  a  glance  that  a  call  to  perform  an  operation 
or  services  rendered  in  an  obstetrical  case  ought  to 
be  rewarded  by  a  larger  fee  than  the  ordinary  call, 
and  so  the  law  wisely  recognizes  the  right  of  a  physi- 
cian or  surgeon  to  graduate  his  charges  according  to 
the  character  of  his  services.  It  has  been  held  that 
a  rule  of  a  county  board  which  fixes  a  fee  of  one  dollar 
per  visit  for  medical  aid  furnished  to  patients  under 
a  Pauper's  Act  is  unreasonable  when  made  to  apply 
to  all  cases  regardless  of  the  nature  of  the  ailments 
to  be  treated  and  the  character  of  the  services  to 

1  Morrissett  v.  Wood,  123  Ala.,  384;  Cotnam  v.  Wisdom,  83  Ark.,  601;  104 
S.  W.,  164;  Robinson  ».  Campbell,  47  Iowa,  625. 

*  Morrissett  v.  Wood,  123  Ala.,  384;  26  So.,  307;  Lange  v.  Kearney,  9  N.  Y. 
St.,  793. 

1  Haley's  Succession,  50  La.  Ann.,  840;  24  So.,  285;  Lange  P.  Kearney,  24 
N.  Y.  S.  R.,  262,  affirmed  in  127  N.  Y.,  676;  28  N.  E.,  255. 
4  Cotnam  v.  Wisdom,  83  Ark.,  601 ;  104  S.  W.,  164. 


112  COMPENSATION 

be  rendered.  Many  cases  might  arise,  so  serious, 
dangerous,  or  disagreeable  in  their  nature,  that  no 
physician,  of  whatever  skill  or  experience,  would  be 
willing  to  undertake  them,  because  of  the  inadequacy 
of  the  compensation  fixed.1 

(e)  As  Affected  by  the  Skill  of  the  Physician.— 
The  law,  as  a  rule,  sets  no  limitation  to  fees  provided 
they  be  reasonable.  Within  this  rule  a  practitioner 
is  allowed  discretionary  powers  and  may  charge  more 
or  less  according  to  his  own  estimate  of  the  value  of 
his  services.  No  one  will  pretend  to  assert  that  all 
services  are  of  equal  value,  and  no  one  will  claim  that 
those  who  can  render  them  more  skilfully  should 
receive  only  the  same  reward  as  those  who  can  render 
them  the  least  so.  A  medical  man  of  great  eminence 
may  be  reasonably  entitled  to  a  larger  recompense 
than  one  who  has  not  equal  practice,  after  it  has 
become  publicly  known  that  he  expects  a  larger  fee, 
inasmuch  as  the  party  applying  to  him  must  be  taken 
to  have  employed  him  with  a  knowledge  of  this 
circumstance. 

(/)  As  Affected  by  Loss  of  Other  Practice. — A 
physician  who,  at  the  request  of  a  patient,  agrees 
for  a  time  to  abandon  his  other  practice  and  devote 
himself  exclusively  to  the  one  patient,  and  does  so, 
rendering  unusual  services,  is  not  restricted  in  the 
amount  of  his  compensation  to  the  usual  charges 
made  by  physicians  charging  by  the  visit,  but,  in 
estimating  the  amount  of  compensation,  the  witnesses 
may  take  into  view  the  nature  of  the  contract,  and  the 
fact  that  the  physician  would  probably  sustain  loss 
in  other  practice,  though  his  actual  loss  would  not 
be  a  proper  subject  for  consideration.2  But  a  contract 

1  Dieffenbacher  v.  County  of  Mason,  117  111.  App.,  103. 

2  Patterson  v.  Head,  i  Lea.  (Tenn.),  664. 


AMOUNT  OF  COMPENSATION  113 

to  pay  more  than  the  actual  value  of  services  rendered 
is  unusual,  and  a  construction  should  not  be  given  to 
a  physician's  contract  for  services  which  would  give 
him  compensation  for  loss  of  business  while  absent 
from  his  office  in  addition  to  compensation  for  his 
services,  unless  the  language  employed  is  capable  of 
no  other  construction,  and  testimony,  that  a  promise 
to  pay  such  double  compensation  was  made,  must  be 
well  supported  by  facts  and  circumstances  to  sustain 
a  recovery.1  Where  a  physician  was  summoned  from 
a  distance  to  attend  his  aunt  not  in  a  professional 
capacity,  but  as  an  adviser  in  business  matters,  and 
on  his  arrival  he  rendered  valuable  professional  services 
which  were  accepted  by  the  aunt,  he  is  entitled  to 
compensation.  But  not  having  been  summoned  pro- 
fessionally in  the  first  instance,  he  cannot  in  estimating 
his  services  claim  for  loss  of  home  practice.2 

(g)  In  Cases  of  Epidemics. — In  cases  of  epidemics 
of  smallpox,  yellow  fever,  and  the  like,  physicians 
are  justified  in  charging  higher  fees,  but  the  courts 
will  not  uphold  exorbitant  fees  on  that  ground.3 

(h)  Right  to  Collect  Interest  on  Claim. — The  right 
of  a  physician  or  surgeon  to  collect  interest  on  claims 
due  for  professional  services  rendered  depends  in  a 
large  degree  upon  the  worcfing  of  the  statute  in  the 
State  in  which  they  practise.  Thus  in  Georgia  it  has 
been  held  that  a  physician  was  entitled  to  interest 
under  a  statute  providing  that  the  accounts  of  "mer- 
chants, tradesmen,  and  mechanics"  should  have  inter- 
est. The  court  said:  'The  word  'tradesman'  does 
not,  perhaps,  ordinarily  cover  physicians;  but  they 
have  a  trade,  an  art,  a  mystery.  They  usually  give 

1  Burke  v.  Mulgrew,  127  App.  Div.  (N.  Y.),  733. 
1  Succession  of  Dickey,  41  La.  Ann.,  1010. 
*  Collins  P.  Graves,  13  La.  Ann.,  95. 


114  COMPENSATION 

it  a  more  dignified  name,  to  wit:  Profession.  One  of 
the  definitions  of  trade  given  by  Webster  is,  'The 
business  a  man  has  learned  by  which  he  earns  his 
livelihood."' 

Where  interest  is  allowed  generally  on  accounts,  it 
seems  that  the  physician  is  entitled  to  interest  on  his 
claim  for  services  from  the  time  such  claim  becomes 
due. 

4.  ACTIONS  FOR  COMPENSATION 

(a)  Limitation  of  Actions. — The  first  question  that 
presents  itself  to  the  mind  of  the  lawyer  when  handed 
an  account  to  collect  is:  Is  it  barred  by  the  statute 
of  limitations?  That  is,  has  it  been  outlawed?  This 
important  fact  must  be  kept  in  mind  by  the  physician 
and  he  must  see  to  it,  at  his  peril,  that  he  gets  his 
claim  into  a  judgment,  or  secures  a  note  or  some 
security  against  which  the  statute  does  not  run  in 
as  short  a  period  of  time  as  it  does  against  the  open 
account. 

Because  of  the  fact  that  the  statutes  of  limitation 
vary  so  greatly  in  the  different  States,  we  will  have 
to  leave  it  with  the  reader  to  look  up  in  his  statutes 
the  period  of  limitation  upon  accounts.  The  general 
statute  applicable  to  other  simple  contracts  applies 
to  contracts  of  physicians. 

In  case  the  first  items  of  the  account  are  found 
to  be  barred,  but  the  later  items  are  not,  the  only 
safe  course  is  to  consult  an  attorney,  for  the  deci- 
sions of  the  several  States  are  in  conflict  as  to  whether 
this  bars  the  whole  account  or  only  part  of  it,  or 
whether  a  payment  made  upon  the  account  does  not 
take  the  earlier  charges  out  of  the  operation  of  the 
statute.  The  decisions  are  so  conflicting,  and  the 


ACTIONS  FOR  COMPENSATION  115 

question  such  a  close  one,  that  the  only  safe  way 
to  do  is  to  leave  it  to  an  attorney,  who  can  advise 
wrhat  the  legislature  and  the  courts  in  the  several 
States  have  said  upon  this  subject.  After  the  claim 
is  inv  a  judgment,  it  should  be  remembered  that  un- 
less execution  is  issued  ever  so  often  (in  some  States 
five  years)  the  judgment  will  become  dormant. 

(b)  When    Fees    are    Due. — In    ordinary    cases    no 
date    for    payment    is    stipulated    by   the    physician; 
when  this  is  done,  however,  payment  is  due  on  the 
stipulated  date,  and  a  refusal  to  pay  gives  the  physi- 
cian   an   immediate    right   of   action.     In    the   great 
majority  of  cases  where  no  payment  is  fixed  by  the 
parties  the  law  implies  a  contract  to  pay  upon  the 
rendition  and  completion  of  the  services. 

(c)  Right   to    Set   Up    Malpractice   as   Defence. — A 
failure  to  exercise  due  care  or  ordinary  skill,  resulting 
in  injury  to  a  patient,  may  be  pleaded  as  a  defence 
to  an  action   by  the   physician   for  the  value  of  his 
services,1    but   the   defence   of   recoupment    must    be 
pleaded  especially.2 

(d)  Intoxication  as  Defence. — Intoxication  sufficient 
to  render  a  physician  or  surgeon  incompetent  to  per- 
form his  duty  is  a  defence  to  an  action  for  compensation 
for  services  rendered;  but  one  who  knows  the  intem- 
perate  habits  of  a   physician   cannot  set   up   such   a 
defence  when  he  continues  to  employ  him.3 

(e)  Evidence. — (i)  In    General. — A    physician    who 
brings   an    action    to    recover    the   value   of   services 
rendered  as  a  physician  to  a  defendant  at  his  request 
must  prove  by  testimony  that  he  is  a  physician,  that 
he  was  employed  as  such  by  the  defendant,  that  he 

1  Howell  v.  Goodrich,  69  111.,  556;  Vandenberg  v.  Slagh,  150  Mich.,  225. 
1  McLure  r.  Hart,  19  Ark.,  119. 
»  McKleroy  v.  Sewell,  73  Ga.,  657. 


116  COMPENSATION 

rendered  the  services  alleged,  and  the  value  of  such 
services.  He  is  not  bound  to  prove  the  value  of  the 
services  to  the  defendant;  they  may  save  the  defend- 
ant's life  or  they  may  effect  no  cure;  or  a  cure  may 
follow  without  aid  from  the  services.  In  the  first 
case  the  value  of  the  services  can  hardly  be  measured ; 
in  the  other  they  are  of  no  value.1 

(2)  Proof  of  Authority  to  Practise  Medicine. — While 
there  is  some  conflict  of  opinion  on  the  necessity  of  a 
physician  suing  to  recover  for  his  professional  services 
to  show  affirmatively  his  compliance  with  the  law, 
the  weight  of  authority  and  reason  seem  to  be  in 
favor  of  the  rule  that  when  the  question  of  license 
or  qualification  of  a  physician  arises  collaterally 
in  a  civil  action  for  his  compensation  for  services 
rendered  the  license  or  due  qualification  under  the 
statute  will  be  presumed.  But  it  is  safer  to  be  pre- 
pared before  the  trial  to  prove  the  possession  of  the 
qualifications  required  by  law.2  The  reason  why  the 
license  will  be  presumed,  when  there  is  no  evidence 
to  the  contrary,  rests  upon  the  principle  that  when 
an  act  is  required  by  positive  law  to  be  done,  the 
omission  of  which  would  be  a  misdemeanor,  the  law 
presumes  that  it  has  been  done,  and  therefore  the 
party  relying  on  the  omission  must  make  proof  of  it 
although  it  be  a  negative.3  On  the  other  hand  the 
courts  of  Alabama,  Georgia,  Delaware,  Indiana,  and 
New  Jersey  have  held  that  the  effect  of  these  "license 
acts"  was  to  prohibit  the  practising  of  medicine  by 
all  persons  unless  they  were  licensed  by  the  proper 
authority  in  their  State  or  their  names  registered 

1  Styles  v.  Tyler,  64  Conn.,  432. 

2  Williams  v.  People,  20  111.  App.,  93;  Leggatt  v.  Gerrick,  35  Mont.,  91; 
McPherson  v.  Cheadell,  24  Wend.,  N.  Y.,  15;  Webster  v.  Laub,  15  S.  D., 
292;  89  N.  W.,  473. 

3  Chicago  v.  Wood,  24  111.  App.,  40;  Leggatt  v.  Gerrick,  35  Mont.,  91. 


ACTIONS  FOR  COMPENSATION  117 

as  required  by  the  statute,  and  unless  it  was  proved 
that  the  persons  rendering  such  services  were  not 
within  the  prohibition  of  the  statute  they  cannot 
recover  in  actions  founded  on  contracts  for  medical 
services.1  In  South  Carolina  it  has  been  held  that 
the  physician's  right  to  practise  is  presumed  unless 
the  patient  or  the  party  sued  gives  him  reasonable 
notice  that  proof  of  his  qualifications  will  not  be 
required.2 

(3)  Proof  as  to  Skill  and  Care. — When  the  defendant 
in  an  action  by  a  physician  to  recover  the  value  of 
professional  services  relies  upon  evidence  of  want  of 
ordinary  care  and  skill  in  the  treatment  of  the  case 
in  defence  of  the  action  and  by  way  of  counter  claim 
for  damages  the  burden  of  proof  in  establishing  such 
negligence  rests  upon  him.     The  theory  of  the  law 
which  holds  the  physician  to  a  contract  to  use  ordinary 
skill  implied  as  an  incident  to  the  contract  of  employ- 
ment does  not  make  the  performance  of  such  implied 
contract  such  an  element  of  his  right  of  action  that 
it  must  be  alleged  in  his  complaint.     The  disproof  of 
the  actual  acts  and  omissions  necessary  to  show  that 
ordinary   skill   has   not   in   fact   been   exercised   in   a 
particular  case  is  not  a  part  of  the  physician's  case 
in  chief.3 

(4)  Proof  of  Employment. — It  is  the  duty  of  the 
physician  who  is  suing  for  his  compensation  for  medical 
services  rendered  to  prove  by  testimony  that  he  was 
employed  as  a  physician  or  surgeon  by  the  defendant, 
whoever  that  individual  or  corporation  may  happen 
to  be.4 

1  Mays  v.  Williams,  27  Ala.,  267;  Adams  r.  Stewart,  5  Hair.  (Del.),  144; 
Bower  v.  Smith,  8  Ga.,  74;  Cooper  v.  Griffin,  13  Ind.  App.,  212;  Dow  v.  Haley, 
30  N.  J.  L.,  354. 

*  Crane  v.  McLaw,  12  Richardson  (S.  C.),  129. 

1  Styles  v.  Tyler,  64  Conn.,  432.  *  Styles  v.  Tyler,  64  Conn.,  432. 


118  COMPENSATION 

(5)  Proof   of    Services    Rendered. — Not    only    must 
the  physician,   who  brings  an  action   to  recover  the 
value  of  services  rendered  prove  that  he  was  employed 
by  the  defendant  as  such  but  that  he   rendered  the 
services  alleged.1     A  physician  is  not  required,  how- 
ever, to  prove  in  an  action  for  his  services  the  necessity 
of  making  the  number  of  visits  for  which  he  seeks 
compensation.2 

(6)  Admissibility    of    Books    of    Account    to    Prove 
Charges  for  Services  Rendered. — Books  of  account  are 
held    in    most   States    to    be    competent    evidence    to 
prove   charges   for   professional   services   rendered   by 
a  physician,  and  as  admissible  in  evidence  as  those 
of  a  trader  or  merchant.3    The  books  of  account  may 
be  used   in  court  for  two  purposes:      (i)    Merely  to 
refresh  the  mind  of  the  physician  while  he  is  testifying 
as  to  the  services  and  charges  of  which  they  contain 
a   record;    (2)    as   evidence   themselves   to   prove   the 
claim.    The  general  rule  is  that  books  of  account  may 
be  used  by  the  witness  merely  to  refresh  his  memory. 
This  account  book  is  the  book  in  which  every  physi- 
cian should  keep  the  daily  register  of  all  his  business, 
and  the  items  should  be  charged  thereon  on  or  near 
the  day  during  which  the  services  were  rendered   in 
order  to  make  it  competent  as  evidence.     The  form 
of   the   book  is   immaterial   provided   it   be   regularly 
kept  as  a  book  of  original  entry.     It  is  not  necessary 
that  the  entry  be  made  at  the  very  moment  the  service 
was  rendered.    It  has  been  held  that  entries  transferred 
from  a  slate  to  a  book  from  one  to  three  days  after 
the  transaction  does  not  render  the  book  inadmissible 
as  a  book  of  original  entries.    The  charges  on  the  slate 


1  Styles  v.  Tyler,  64  Conn.,  432. 

2  Ebner  v.  Mackey,  186  111.,  297. 

3  Foster  v.  Coleman,  I  E.  D.  Smith,  85. 


ACTIONS  FOR  COMPENSATION  119 

being  held  to  be  mere  memoranda  and  not  intended 
to  be  permanent,  and  the  delay  not  so  great  as  to 
justify  the  exclusion  of  the  book  on  the  ground  that 
its  entries  were  not  original.  The  book  account  of  a 
physician  should  not  contain  lumping  charges.  There- 
fore in  an  action  to  recover  on  a  book  account  for 
medical  services  rendered,  where  the  copy  of  the 
account  filed  contains  lump  charges,  judgment  for 
want  of  a  sufficient  affidavit  of  defence  will  be  refused.1 
But  it  has  been  held  unnecessary  to  specify  in  a  bill 
of  particulars  the  exact  price  of  each  service  rendered.2 
The  charges  made  by  a  physician  in  his  book  of  original 
accounts  for  professional  services  are  not  conclusive 
of  the  value;  and  where  an  affidavit  of  defence  sets 
out  that  such  charges  are  excessive  the  case  must 
go  to  the  jury.3  And  on  the  trial  of  an  action  for 
professional  services  the  jury  are  the  judges  of  the 
credibility  of  the  physician's  books  of  account  and 
may  disregard  a  claim  which  appears  to  them  exces- 
sive or  unreasonable.4  Proof  that  the  physician's 
books  were  honestly  and  correctly  kept  must  be 
proved  as  a  preliminary  to  receiving  the  books  in 
evidence.  The  mode  of  proving  this  varies  in  different 
jurisdictions.  The  New  York  rule  governing  the 
admission  of  a  party's  books  for  the  purpose  of  sus- 
taining his  claim  in  an  action  to  recover  for  professional 
services  as  a  physician  claimed  to  have  been  rendered 
the  defendant  by  the  plaintiff's  intestate  is  as  follows: 
'They  ought  not  to  be  admitted  where  there  are 
several  charges,  unless  a  foundation  is  first  laid  for 
their  admission,  by  proving  that  the  party  had  no 
clerk,  that  some  of  the  articles  charged  have  been 

1  Davidson  ».  Geddes,  I  W.  N.  C.  (Pa.),  9- 
*  Van  Bibber  v.  Merrit,  12  W.  N.  C.,  272. 
1  Thomas  v.  Askin,  6  W.  N.  C.,  501. 
4  Langolf  v.  Pfromer,  2  Phila.  (Pa.),  17. 


120  COMPENSATION 

delivered,  that  the  books  produced  are  the  account 
books  of  the  party,  and  that  he  keeps  fair  and  honest 
accounts,  and  this  by  those  who  have  dealt  and  settled 
with  him.1  A  jury  has  no  right  to  assume  that  because 
most  of  the  items  of  a  physician's  account  have  been 
proved  to  be  correct  that  all  of  the  items  are  correct. 
The  physician  must  either  prove  his  account  by  direct 
or  positive  proof  or  show  that  he  keeps  correct  books, 
and  that  his  accounts  have  been  correctly  transcribed."2 
Book  entries  made  by  a  physician's  clerk  from 
memoranda  furnished  at  the  time  of  their  entry 
have  been  held  admissible.3  A  physician's  diary, 
visiting  list,  or  "call  book,  with  figures  and  symbols 
marked  down  in  blank  spaces  opposite  the  patients' 
names,  to  indicate  the  amount  and  character  of  the 
services  rendered,  cannot  be  received  in  evidence  as 
a  book  of  original  entries."4  But  the  visiting  list  of  a 
physician,  if  the  entries  are  regularly  proved,  is  admis- 
sible to  show  the  number  of  visits  made  to  a  patient.5 
The  opinion  of  a  witness  that  a  physician  attended 
the  deceased  for  six  or  eight  months  before  his  death 
and  that  the  bill  was  a  just  and  correct  one  cannot 
supply  the  lack  of  data  to  support  such  an  opinion.6 
It  has  been  held,  however,  that  a  physician  may 
prove  the  rendition  of  professional  services  by  a  wit- 
ness who  testified  that  the  physician  left  the  office, 
taking  medicine  with  him,  and  said  that  he  was 
going  to  visit  the  defendant,  and  started  in  the  direc- 
tion of  the  place  where  he  lived.7  "The  charge  for 

1  Swan  v.  Warner,  197  N.  Y.,  190. 

2  Moore  ».  Joyce,  23  Miss.,  584. 

3  Haines'  Estate,  26  Co.  Ct.  (Pa.),  223. 

4  German's  Estate,  16  Phila.  (Pa.),  318;  Kelley's  Estate,  18  Co.  Ct.  (Pa.), 
117. 

6  Moffett's  Estate,  1 1  Phila,  79. 

8  Dejol  v.  Johnson,  12  La.  Ann.,  853. 

7  Autanga  Co.  v.  Davis,  32  Ala.,  703. 


ACTIONS  FOR  COMPENSATION  121 

'medicine'  in  a  physician's  book  of  original  entries  is  as 
distinct  and  certain  and  definite  as  the  law  demands. 
Usually  such  medicine  is  made  up  of  several  drugs  in 
largely  different  proportions.  To  say  that  such  a 
charge  would  not  be  one  recognized  by  the  courts 
as  a  proper  one  unless  it  stated  all  the  various  drugs 
prescribed  with  the  different  proportions  of  each  drug 
furnished  in  the  prescription  would  be  a  construction 
of  the  law  which  would  be  absurd.  The  law  relating 
to  entries  in  a  book  account  in  commercial  trans- 
actions cannot  be  applied  with  the  same  strictness 
to  professional  accounts  such  as  this  where  nearly 
all  medicines  are  compounded."1  Under  the  Nebraska 
statute  the  books  of  account  of  a  physician  are  admis- 
sible in  an  action  against  the  personal  representative 
of  a  deceased  patient  to  recover  for  professional 
services  supported  by  the  suppletory  oath  of  his  wife.2 
And  in  Pennsylvania  it  was  held  that  professional 
services  rendered  by  a  physician  are  a  proper  subject 
of  book  account.3  But  in  a  later  supreme  court 
case  the  court  intimated  that  upon  proper  objection 
they  would  hold  them  inadmissible.4  And  it  has  been 
held  that  while  such  books  should  be  produced  and 
proved  in  the  usual  way,  that  testimony  proving  the 
actual  rendition  of  such  services  was  better  than  the 
production  of  the  books.5 

(7)  Proof  of  Value  of  Services. — In  an  action  by  a 
physician  to  recover  the  value  of  professional  services 
rendered,  the  value  to  be  proved  by  him  is  the  ordinary 
and  reasonable  price  for  services  of  that  nature;  but 
he  is  not  bound  to  prove  the  value  of  the  services  to 

1  Stagger's  Estate,  43  Weekly  Notes  of  Cases,  79. 
1  Martin  p.  Scott,  12  Neb.,  42. 

*  German's  Estate,  16  Phila.,  318. 
4  In  re  Fulton,  178  Pa.,  78. 

•  Durand  v.  Grimes,  18  Ga.,  693. 


122  COMPENSATION 

the  patient.1  Medical  services  rendered  upon  proper 
request  are  presumed  to  be  of  some  value.2  Should  the 
case  be  one  of  a  difficult  operation,  and  the  professional 
ability  of  the  physician  or  surgeon  be  of  the  highest, 
the  jury  are  bound  to  take  these  facts  into  considera- 
tion in  arriving  at  a  verdict.3  So,  too,  in  the  case  of 
epidemics,  physicians  are  entitled  to  charge  an  increased 
rate  for  their  services,  but  the  existence  of  an  epidemic 
does  not  authorize  exorbitant  fees.4  Evidence  of  a 
physician's  income  prior  to  the  rendition  of  the  services 
is  admissible  to  show  the  value  of  his  time,  but  evi- 
dence of  a  falling  off  of  receipts  during  the  time  services 
were  rendered  is  inadmissible,  since  this  might  have 
been  due  to  other  causes.5  There  is  no  presumption 
of  law  as  to  the  value  of  a  surgeon's  services,  nor 
that  a  jury  can  ascertain  their  value  without  testi- 
mony from  persons  knowing  something  about  it. 
Nor  has  a  jury  a  right  to  reduce  the  compensation 
claimed  for  such  services  where  indisputed  testimony 
shows  it  to  have  been  appropriate,  and  on  their  own 
unsupported  notions  that  the  treatment  should  have 
been  different.6  A  witness  who  is  called  by  the  patient 
to  show  the  value  of  services  sued  for  cannot  testify 
as  to  the  usual  and  customary  charge  for  like  services, 
but  must  confine  himself  to  the  value  of  the  particular 
services  in  question;7  neither  can  the  reasonableness 
of  the  fee  be  established  by  a  witness  testifying,  to 
what  the  same  physician  had  charged  him  in  a  similar 
case;8  nor  can  one  not  a  physician  testify  as  to  the 

1  Styles  v.  Tyler,  64  Conn.,  432. 

2  Board  of  Commissioners  v.  Brewington,  74  Ind.,  7. 

3  Lange  v.  Kearney,  4  N.  Y.  Supp.,  14;   127  N.  Y.,  676. 

4  Collins  v.  Graves,  13  La.  Ann.,  95. 

6  Burke  v.  Mulgrew,  127  App.  Div.,  733. 
8  Wood  v.  Barker,  49  Mich.,  295. 

7  Trenor  v.  C.  P.  R.  R.  Co.,  50  Cal.,  222 

8  Collins  v.  Fowler,  4  Ala.,  647. 


ACTIONS  FOR  COMPENSATION  123 

value  of  such  services;1  but  expert  witnesses  may 
testify  as  to  the  value  of  medical  services  rendered, 
even  though  they  have  no  knowledge  as  to  what 
other  physicians  have  charged  for  such  work,  but 
base  their  opinion  on  what  they  think  the  services 
are  worth.2 

Evidence  as  to  the  fitness  of  a  cellar  as  a  place  for 
an  operation  has  been  held  admissible  on  the  ques- 
tion of  reasonableness  of  the  charge  therefor.3  Where 
the  witnesses  differ  as  to  the  proper  charges  to  be 
made  by  the  physician,  it  is  the  duty  of  the  jury  to 
search  for  the  true  value  of  the  services  performed. 
In  Louisiana  the  rule  is  that  where  the  witnesses 
differ  as  to  the  proper  charges  to  be  made  by  physi- 
cians the  correct  rule  is  to  allow  the  lowest  estimate.4 

(8)  Presentation  and  Proof  of  Claims  Against  Estates 
of  Decedents. — In  those  jurisdictions  where  there  are 
no  statutory  enactments  prescribing  the  method  of 
presenting  claims  there  are  no  technical  rules  which 
regulate  the  form  for  exhibiting  claims  in  the  probate 
court,  or  for  framing  issues  for  their  trial  on  appeal, 
and  it  is  not  desirable  that  there  should  be.  Substance 
is  more  regarded  than  form  in  such  cases,  and  the 
simpler  the  statement  the  better,  if  sufficient  to 
appraise  the  court  and  parties  of  the  real  claim.5  But 
in  those  jurisdictions  where  statutory  enactment 
prescribes  the  method  of  presenting  claims  the  letter 
of  the  enactment  must  be  complied  with.  This  is 
frequently  of  great  importance,  as  in  cases  of  insolvency 
the  priority  of  the  claim  presented  might  govern  its 
payment.6  The  claim  against  a  decedent's  estate 

1  Mock  r.  Kelly,  3  Ala.,  387. 

*  Board  of  Commissioners  of  Marion  Co.  P.  Chambers,  75  Ind.,  409. 

1  Sayles  ».  Fitzgerald,  72  Conn.,  391. 

4  Succession  of  Duclos,  n  La.  Ann.,  406;  Collins  v.  Graves,  13  La.  Ann.,  95 

4  Comstock  v.  Smith.  26  Mich.,  306.  *  Piffer  P.  Suss,  73  Mo.,  245. 


124  COMPENSATION 

must  be  filed  or  presented  by  the  person  who  owns 
it  or  has  an  interest  in  it,  with  the  right  of  enforcing 
its  collection,  or  by  his  agent  or  attorney;  its  present- 
ment by  a  prior  holder  is  not  sufficient.1  Claims  may 
be  presented  at  any  time  after  the  executors  qualify 
and  enter  upon  the  discharge  of  their  duties,  and 
while  they  are  entitled  to  a  reasonable  time  to  examine 
and  decide,  even  though  no  notice  has  been  published, 
the  effect  of  their  decision  is  the  same  as  though  the 
claim  were  presented  after  publication.  The  notice  is 
for  the  protection  of  executors  and  the  estates  which 
they  represent,  and  there  is  no  absolute  legal  obliga- 
tion to  give  it  at  all.  The  majority  of  the  States 
have  enacted  laws  making  the  costs  and  expenses 
of  the  last  sickness  of  a  person  preferred  debts;  that 
is,  they  are  entitled  to  be  paid  before  the  ordinary 
debts  of  the  estate  are  paid.  In  the  absence  of  a 
statute  on  the  subject  the  costs  and  expenses  of  the 
last  sickness  have  no  preference  over  the  ordinary 
debts  of  an  individual.  The  duration  of  the  last 
sickness  may  be  long  or  short  and  no  definite  time 
can  be  fixed  therefor.  The  last  sickness  is  the  sick- 
ness which  terminates  in  death.  Many  persons  die 
by  suicide,  accident,  result  of  war,  and  execution  by 
law  who  do  not  have  any  last  sickness,  and  others, 
again,  may  die  as  the  result  of  the  development  of  a 
disease  with  which  they  have  been  afflicted  for  years. 
It  is,  however,  now  well  settled  that  in  chronic  cases 
the  last  sickness  dates  from  the  time  that  the  disease 
takes  a  turn  for  the  worse,  which  condition  continues 
until  death.2  As  was  said  by  the  Appellate  Court 
in  a  case  in  which  the  question  of  the  "last  illness" 
of  one  who  had  been  lingering  for  months  with  a 

1  Marshall  v.  Perkins,  72  Me.,  343. 

2  Huse  v.  Brown,  8  Me.,  167;  Stagger's  Estate,  8  Pa.  Super.  Ct.,  260. 


ACTIONS  FOR  COMPENSATION  125 

cancer  was  in  issue,  and  in  which  the  trial  court  had 
instructed  the  jury  that  if  they  should  decide  the 
testator  died  of  the  cancer  under  which  he  was  suffer- 
ing when  the  physician  attended  him  and  that  it  was 
a  continuing  complaint  or  disorder  until  his  death, 
they  might  consider  it  his  last  illness.  And  why  not 
whether  any  such  instruction  had  been  given  to  them 
or  not?  It  would  seem  to  be  a  plain  understanding  of 
an  indisputable  fact  that  the  sickness  which  terminated 
in  the  death  of  a  patient  is  his  last  sickness.  .  .  . 
Sickness  assumes  so  many  forms,  and  death  approaches 
in  so  many  different  ways,  that  we  know  not  how  to 
lay  down  any  legal  principle  in  such  cases  that  can  be 
applied  by  way  of  construction  of  the  word  "last 
sickness."  What  is  to  be  considered  a  man's  last 
sickness  seems  to  be  a  question  properly  determinable 
by  the  jury  upon  the  facts  in  each  case,  and  which 
can  seldom,  if  ever,  be  the  same  in  two  instances. 
There  may  probably  be  in  a  multitude  of  cases  a 
strong  resemblance.  On  a  trial  for  homicide  it  is 
always  a  question  for  the  jury  whether  the  deceased 
died  a  natural  death  or  in  consequence  of  the  act  of 
the  person  accused.  So  it  may  be  a  question  whether 
the  sickness  of  which  a  person  dies  is  the  same  under 
which  he  labored  when  confined  and  receiving  medical 
aid  one  or  two  months  before.  In  the  case  before  us 
the  questions  as  to  the  cause  of  the  testator's  death 
and  the  continuance  of  his  sickness  have  been  settled 
by  the  jury  whose  business  it  was  to  settle  it.1  A 
South  Carolina  court  in  deciding  the  question  what  con- 
stitutes the  "last  sickness"  says:  'The  court  can  lay 
down  no  rule  or  limitation  for  the  duration  of  the  last 
sickness  of  a  man  nor  for  the  degree  of  attention  to 
be  paid  him.  A  wounded  man  may  linger  a  long  time 

1  Huse  v.  Brown,  8  Me.,  167. 


126  COMPENSATION 

in  a  helpless  state,  and  chronic  diseases  and  some 
cancers  run  through  more  time  than  a  year.  The 
act  concurs  with  the  principles  of  Christian  civilization, 
and  is  remedial  of  a  common  want  and  necessity- 
attention  and  services  during  last  sickness.  We 
must  therefore  construe  it  liberally  and  let  it  inure 
to  its  proper  end,  the  full  relief  of  the  sick  and  the 
infirm.  The  court  and  the  jury  were  the  proper 
judges  in  the  particular  instance,  and  they  appear 
to  have  assessed  the  amount  of  the  plaintiff's  account 
with  justice  and  discretion."1  Physicians  should  be 
careful  in  presenting  their  claims  to  see  to  it  that  they 
are  presented  within  the  prescribed  period,  for  a 
failure  to  do  so  will,  in  a  majority  of  the  States,  bar 
the  claim.  The  time  fixed  for  presentation  of  claims 
refers  as  well  to  those  not  due  as  to  those  which  have 
already  accrued.  It  seems  to  be  well  settled  in  some 
States  that  the  mere  promise  of  the  executor  or  admin- 
istrator is  not  sufficient  to  take  the  case  out  of  the 
operation  of  the  statute.2  And  in  several  States 
executors  and  administrators  are  prohibited  from 
allowing  claims  barred  by  prescription.  The  verifica- 
tion of  claims  is  a  precaution  against  gross  imposition. 
It  is  quite  general  to  require  the  verification  of  the 
account  submitted  to  the  executor,  and  the  affiant 
should  be  required  to  show  that  the  particular  claim 
is  just  and  owing,  and  that  there  are  no  counter  claims 
outstanding  to  the  best  of  his  knowledge  and  belief. 
Provisions  exist  in  several  of  the  States  by  which  the 
administrator,  being  duly  convinced  of  the  validity 
of  a  claim  presented,  may  allow  the  claim  without 
the  formality  of  a  judgment.  In  other  States  the 
probate  court  must  certify  its  approbation  of  the 

1  Percival,  Admr.,  v.  McVoy,  Dudley  (S.  C.),  337- 

2  Steel  v.  Steele's  Admr.,  64  Ala.,  438;  Bingham  v.  Robertson,  25  Miss.,  501 . 


ACTIONS  FOR  COMPENSATION  127 

allowance,  and  in  all  of  the  States,  before  compulsory 
payment  is  allowed,  a  duly  docketed  judgment  must 
be  exhibited  as  a  prerequisite.  Where  a  claim  against 
an  estate  is  presented  in  proper  form  and  duly  verified 
to  the  person  and  at  the  place  named  in  the  statutory 
notice  to  creditors  given  by  executors,  and  after  a 
reasonable  opportunity  to  examine  into  its  validity 
and  fairness,  the  executors  do  not  offer  to  refer  on 
the  ground  that  they  doubt  its  justice,  or  do  not 
dispute  it,  it  acquires  the  character  of  a  liquidated 
and  undisputed  debt  against  the  estate.1 

(9)  Physician's  Disqualification  against  Deceased 
Patient. — In  almost  every  jurisdiction  in  the  United 
States,  statutes  have  been  enacted  excluding  the 
testimony  of  the  survivor  of  a  transaction  with  a 
decedent  when  offered  against  the  latter's  estate. 
"The  law  in  this  exception  to  the  privilege  to  testify 
was  intended  to  prevent  an  undue  advantage  on  the 
part  of  the  living  over  the  dead,  who  cannot  confront 
the  survivor,  or  give  his  version  of  the  affair,  or  expose 
the  omission,  mistakes,  or  perhaps  falsehoods  of  such 
survivor.  The  temptation  to  falsehood  and  conceal- 
ment in  such  cases  is  considered  too  great  to  allow  the 
surviving  party  to  testify  in  his  own  behalf."1  It 
seems  to  us,  however,  that  statutes  which  exclude 
testimony  on  this  ground  are  of  doubtful  expediency. 
There  are  more  honest  claims  defeated  by  them,  by 
destroying  the  evidence  to  prove  such  claim,  than 
there  would  be  fictitious  claims  established  if  all  such 
enactments  were  swept  away  and  all  persons  rendered 
competent  witnesses.  Whatever  the  correct  principle 
may  be  a  physician's  lips  are  sealed  in  a  claim  against 
estates  of  decedents,  and  he  can  only  prove  his  case 

1  Lambert  v.  Craft,  98  N.  Y.,  342. 
1  Owens  r.  Owens,  14  W.  Va.,  88. 


128  COMPENSATION 

by  submitting  his  books  of  account  and  by  producing 
other  competent  witnesses  whose  testimony  may  cor- 
roborate the  account.  The  persons  most  commonly 
called  upon  to  corroborate  a  physician's  account  are 
his  wife  or  his  attendant.  In  some  States  the  wife  is 
denied  the  right  to  testify  in  a  suit  to  which  her 
husband  is  a  party. 


CHAPTER   VI 

MALPRACTICE  OR   NEGLIGENCE 

i.  DEFINITIONS 

(o)  Malpractice. — Malpractice  is  the  negligent  per- 
formance by  a  physician  of  the  duties  which  are 
devolved  and  incumbent  upon  him  on  account  of 
his  contractural  relations  with  his  patient.1 

(b)  "Ethical   Malpractice." — "Ethical    malpractice" 
is  that  kind  of  malpractice  in  which  persons  claiming 
to  be  medical  men  bring  suits  against  physicians  or 
against  medical  societies  for  alleged  insults  to  their 
professional  dignity.2    This  is  a  branch  of  the  subject 
which  is  but  little  understood  outside  of  the  medical 
profession,  and  no  physician  who  attends  strictly  to 
the  business  of  his  profession  and  does  not  meddle 
in  the  business  or  notions  of  those  around  him  needs 
any  special  instruction  or  advice  in  regard  to  it. 

(c)  "Criminal    Malpractice." — "Criminal     malprac- 
tice"   is    that    branch    of    malpractice    in    which    the 
State   initiates   the   proceedings  under  the  provisions 
of  the  criminal  law.3 

(d)  "Wilful  Malpractice."— "Wilful  malpractice"  is 
where  the  physician  purposely  administers  medicines 
or  performs  an  operation  which  he  knows  and  expects 
will  result  in  damage  or  death  to  the  individual  under 
his  care — as  in  the  case  of  criminal  abortion.4 

1  Tucker  v.  Gillette,  12  Ohio  C.  D.,  401 ;  67  Ohio  St.,  106;  in  Hyatt  v.  Adams, 
16  Mich.,  180,  malpractice  is  defined  as  the  want  of  proper  skill  and  care  in 
the  performance  of  an  operation. 

1  McClelland's  definition.  *  Ibid. 

4  People  v.  Lohman,  2  Barb.  (N.  Y.),  216. 
9 


130  MALPRACTICE  OR  NEGLIGENCE 

(e)  "Ignorant  Malpractice."—  "  Ignorant  malprac- 
tice" is  the  administration  of  medicines  calculated  to 
do  injury  which  do  harm,  and  which  well  educated 
and  scientific  medical  men  would  know  were  not 
proper  in  the  case.1 

2.  DEGREE  OF  CARE  AND  SKILL  REQUIRED 

(a)  General  Rule. — The  law  relating  to  malpractice 
is  simple  and  well  settled,  although  not  always  easy 
of  application.  A  physician  and  surgeon  by  taking 
charge  of  a  case  impliedly  represents  that  he  possesses, 
and  the  law  places  upon  him  the  duty  of  possessing, 
that  reasonable  degree  of  learning  and  skill  that  is 
ordinarily  possessed  by  physicians  and  surgeons  in 
localities  similar  to  that  where  he  practises,  and  which 
are  ordinarily  regarded  by  those  conversant  with  the 
employment  as  necessary  to  qualify  him  to  engage 
in  the  business  of  practising  medicine  and  surgery.2 
Upon  consenting  to  treat  a  patient  it  becomes  his 
duty  to  use  reasonable  care  and  diligence  in  the  exercise 
of  his  skill  and  the  application  of  his  learning  to  accom- 
plish the  purpose  for  which  he  was  employed.  He 
is  under  the  further  obligation  to  use  his  best  judg- 
ment in  exercising  his  skill  and  applying  his  knowledge. 
The  law  holds  him  liable  for  an  injury  to  his  patient 
resulting  from  want  of  the  requisite  knowledge  and 
skill,  or  the  omission  to  exercise  reasonable  care,  or 
the  failure  to  use  his  best  judgment. 

The  rule  in  relation  to  learning  and  skill  does  not 
require  the  surgeon  to  possess  that  extraordinary 
learning  and  skill  which  belongs  only  to  a  few  men  of 

1  Elwell,  Malpractice,  p.  198. 

2  Force  v.  Gregory,  63  Conn.,  167;  Gramm  v.  Boeuer,  56  Ind.,  497;  Whitesell 
v.  Hill,  101  Iowa,  629;  Small  v.  Howard,  128  Mass.,  136;  Burke  v.  Foster,  114 
Ky.,  20;  68  S.  W.,  1096;  Dye  v.  Corbin,  59  W.  Va.,  266. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        131 

rare  endowments,  but  such  as  is  possessed  by  the  average 
member  of  the  medical  profession  in  good  standing.1 

Still  he  is  bound  to  keep  abreast  of  the  times,  and 
a  departure  from  the  approved  methods  in  general 
use  if  it  injures  the  patient  will  render  him  liable 
however  good  his  intentions  may  have  been.2  An 
amputation  which  would  have  been  justified  twenty- 
five  years  ago  would  now  be  looked  upon  as  clear 
evidence  of  ignorance  and  unskilfulness. 

The  rule  of  reasonable  care  and  diligence  does 
not  require  the  exercise  of  the  highest  possible  degree 
of  care,  and  to  render  a  physician  liable  it  is  not 
enough  that  there  has  been  a  less  degree  of  care  than 
some  other  medical  man  might  have  bestowed,  but 
there  must  be  a  want  of  ordinary  and  reasonable  care 
leading  to  a  bad  result.3  This  includes  not  only  the 
diagnosis4  and  treatment,5  but  also  the  giving  of 
proper  instructions6  to  his  patient  or  his  attendants. 

1  Landon  p.  Humphrey,  9  Conn.,  209;  Tefft  v.  Wilcox,  6  Kan.,  46;  Howard 
v.  Grover,  28  Me.,  97;  Simonds  v.  Henry,  39  Me.,  155;  Pike  v.  Honsinger, 
155  N.  Y.,  201. 

1  Iowa — Dunbauld  v.  Thompson,  109  la.,  199.  Kansas — Tefft  v.  Wilcox, 
6  Kan.,  46.  Maine — Patten  v.  Wiggin,  51  Me.,  594.  New  York — Carpenter 
v.  Blake,  60  Barb.,  488.  Ohio — Gillette  v.  Tucker,  67  Ohio  St.,  106.  Pennsyl- 
vania— McCandless  v.  McWha,  22  Pa.  St.,  261.  Rhode  Island — Bigney  P. 
Fisher,  26  R.  I.,  402. 

J  Alabama — McDonald  v.  Harris,  131  Ala.,  359,  31  So.,  548.  Connecticut — 
Landon  v.  Humphrey,  9  Conn.,  209.  Illinois — Hallam  v.  Means,  82  111.,  379. 
Iowa — Peck  v.  Hutchison,  88  la.,  320;  55  N.  W.,  511.  Kansas — Tefft  v. 
Wilcox,  6  Kan.,  48.  Maine — Patten  v.  Wiggins,  51  Me.,  594.  Maryland — 
State  v.  Housekeeper,  70  Md.,  162;  16  Atl.,  382.  Michigan — Hesse  v.  Knippcl, 
I  Mich.,  N.  P.,  109.  New  York — Bellinger  v.  Craigue,  31  Bart.,  534.  Pennsyl- 
vania— McCandless  v.  McWha,  22  Pa.,  261. 

4  Colorado — Jackson  p.  Burnham,  20  Colo.,  532;  39  Pac.,  577.  Illinois — 
Quinn  v.  Donovan,  85  111.,  194.  Maine — Patten  v.  Wiggin,  51  Me.,  594. 
Missouri — Grainger  r.  Still,  187  Mo.,  197;  85  S.  W.,  1114.  New  York — 
Graves  v.  Santway,  52  Hun.,  613;  127  N.  Y.,  677. 

*  Quinn  v.  Donovan,  85  111.,  194;  Pike  v.  Honsinger,  155  N.  Y.,  201. 

•  Beck  P.  Klinik,  78  Iowa,  696;  Feeney  p.  Spaulding,  89  Me.,  in;  Van- 
hooser  r.  Berghoff,  90  Mo.,  487;  Carpenter  v.  Blake,  75  N.  Y.,  12;  Pike  P. 
Honsinger,  155  N.  Y.,  203. 


132  MALPRACTICE  OR  NEGLIGENCE 

The  rule  requiring  him  to  use  his  best  judgment  does 
not  hold  him  liable  for  a  mere  error  of  judgment, 
provided  he  does  what  he  thinks  best  after  careful 
examination.1  His  implied  engagement  with  his  patient 
does  not  guarantee  a  good  result,2  and  no  presumption 
of  the  absence  of  proper  skill  and  attention  arises 
from  the  mere  fact  that  the  patient  does  not  recover. 
Judge  Taft  (later  President  of  the  United  States) 
in  one  of  his  decisions  said:  "A  physician  is  not  a 
warrantor  of  cure."3  But  a  surgeon  may  contract  to 
effect  a  cure.4  And  he  promises  by  implication  to 
use  the  skill  and  learning  of  the  average  physician 

1  Fisher  v.  Nicolls,  2  111.  App.,  484;  Pike  v.  Honsinger,  155  N.  Y.,  201; 
Heath  v.  Glisan,  3  Or.,  64. 

2  United  States — Ewing  v.   Goode,   78   Fed.,   442.      Colorado — Jackson  v. 
Burnham,  20  Colo.,  532.     Connecticut — Styles  v.  Tyler,  64  Conn.,  432;  30 
Atl.,  165.     Illinois — McKee  v.  Allen,  94  111.  App.,  147.     Indiana — Quinn  v. 
Donovan,  85  Ind.,  194.    Maine — Patten  v.  Wiggin,  51  Me.,  594.    Minnesota  — 
Martin  v.  Courtney,  75  Minn.,  255.     Missouri — Vanhooser  v.  Berghoff,  90 
Mo.,  487;  Logan  v.  Field,  75  Mo.  App.,  594.    Ohio — Gallagher  v.  Thompson, 
Wright,  466.     Pennsylvania — Fiedeman  v.  Loewengrund,  2  Weekly  Notes  of 
Cases,  272.     Texas — Graham  v.  Gautier,  21   Tex.,    in.      West   Virginia — 
Lawson  v.  Conaway,  37  W.  Va.,  159;  Dye  v.  Corbin,  59  W.  Va.,  266. 

3  Ewing  v.  Goode,  78  Fed.,  442. 

4  Vanhooser  v.  Berghoff,  90  Mo.,  487. 

Average  Skill  of  Profession  is  Required.  Alabama  —  McDonald  v. 
Harris,  131  Ala.,  359.  Connecticut — Styles  v.  Tyler,  64  Conn.,  432. 
Georgia — Smith  v.  Overby,  30  Ga.,  241.  Illinois — Quinn  v.  Donovan, 
85  111.,  194.  Indiana — Jones  v.  Angell,  95  Ind.,  376.  Iowa — Whitesell 
v.  Hill,  101  la.,  629.  Kansas — Tefft  v.  Wilcox,  6  Kan.,  46.  Kentucky 
— Hickerson  v.  Neeley  (Ky.),  54  S.  W.,  842.  Maine — Patten  v.  Wiggin, 
51  Me.,  594.  Maryland — State  v.  Housekeeper,  70  Md.,  162.  Massa- 
chusetts— Harriott  v.  Plimpton,  166  Mass.,  585.  Michigan — Hitchcock 
v.  Burgett,  38  Mich.,  501.  Minnesota — Martin  v.  Courtney,  75  Minn.,  255. 
Missouri — Vanhooser  v.  Berghoff,  90  Mo.,  487.  Nebraska — Van  Skike  v. 
Potter,  53  Nebr.,  28.  New  Hampshire— Leighton  v.  Sargent,  27  N.  H.,  460. 
New  Jersey — Ely  v.  Wilbur,  49  N.  J.  L.,  685.  New  York — Pike  v.  Honsinger, 
155  N.  Y.,  201.  North  Carolina — Boon  v.  Murphy,  108  N.  C.,  187.  Ohio — 
Gillette  v.  Tucker,  67  Ohio  St.,  106.  Oregon — Heath  v.  Gilsan,  3  Or.,  64. 
Pennsylvania — McCandless  v.  McWha,  22  Pa.,  261.  Tennessee — Wood  v. 
Clapp,  4  Sneed  (Tenn.),  65.  Texas — Graham  v.  Gautier,  21  Tex.,  in.  Ver- 
mont— Wilkins  v.  Brock,  81  Vt.,  332.  Washington — Wells  v.  Lumber  Co., 
107  Pac.,  869.  Wisconsin — Nelson  v.  Harrington,  72  Wis.,  591. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED         133 

to  exercise  reasonable  care  and  to  exert  his  best  judg- 
ment in  the  effort  to  bring  about  a  good  result. 

An  undertaking  merely  to  attend  and  to  cure  and  heal 
a  broken  leg  does  not  impose  upon  the  physician  any 
more  liability  than  is  imposed  by  law.1 

(6)  Physician  as  an  Insurer. — In  the  absence  of  a 
special  contract  to  that  effect  a  physician  does  not 
warrant  or  insure  that  his  treatment  will  be  successful 
or  even  beneficial.2  That  medical  treatment  is  unsuc- 
cessful will  not  of  itself  justify  an  inference  of  unskil- 
fulness  or  negligence  by  the  physician  in  an  action 
against  him  for  malpractice.3  The  mere  failure  to 
effect  a  cure  does  not  even  raise  a  presumption  of  a 
want  of  proper  care,  skill,  and  diligence  in  a  physician.4 

The  implied  contract  of  a  physician  or  surgeon  is 
not  to  cure  or  to  restore  a  fractured  limb  to  its  natural 
perfectness,  but  to  treat  the  case  with  diligence  and 
skill.  The  fracture  may  be  so  complicated  that  no 
skill  vouchsafed  to  man  can  restore  original  straight- 
ness  and  length,  or  the  patient  may  by  wilful  dis- 
regard of  the  surgeon's  directions  impair  the  effect 
of  the  best  conceived  measures.5 

As  was  said  by  Judge  Woodward  in  a  supreme 
court  decision  in  Pennsylvania:  "He  deals  not  with 

1  Hoopingarner  v.  Levy,  77  Ind.,  455. 

*  United  States — Ewing  v.  Goode.  78  Fed.  Rep.,  442.     Colorado — Jackson 
p.  Burnham,  20  Colo.,  532.    Illinois — Quinn  v.  Donovan,  85  111.,  194.    Indiana 
— Jones  v.  Angell,  95  Ind.,  376.    Kansas — Tefft  v.  Wilcox,  6  Kan.,  46.    Ken- 
tucky— Hickerson  v.  Neely  (Ky.,  1900),  54  S.  W.,  842.     Maine — Patten  ». 
Wiggin,  51   Me.,  594.    Michigan — Hesse  v.   Knippel,  I  Mich.,  N.  P.,  109. 
Minnesota — Martin  v.  Courtney,  75  Minn.,  225.     Missouri — Gere  v.  Brock- 
man,  138  Mo.  App.,  231.     New  York — Pike  v.  Honsinger,  155  N.  Y.,  206. 
Ohio — Gallaher  v.  Thompson  Wright,  466.     Oregon — Williams  r.  Poppleton, 
3  Or.,  139.     West  Virginia — Lawson  p.  Conaway,  37  W.  Va.,  159. 

1  Hamrick  v.  Shipp  (Ala.),  52  So.,  932. 

4  Lawson  v.  Conaway,  37  W.  Va.,  159;  16  S.  E.,  564. 

*  Fish  P.  Welker,  5  Ohio  Dec.,  752;  Williams  P.  Poppleton,  3  Or.,  139; 
McCandless  P.  McWha,  22  Pa.,  261;  Bigney  P.  Fisher,  26  R.  I.,  402;  59  Atl., 
72. 


134  MALPRACTICE  OR  NEGLIGENCE 

insensate  matter  like  the  stonemason  or  the  bricklayer, 
who  can  choose  their  materials  and  adjust  them  along 
mathematical  lines,  but  he  has  a  suffering  human 
being  to  treat,  a  nervous  system  to  tranquilize,  and  a 
will  to  regulate  and  control."1 

"The  white  headstones  and  monuments  that  glisten 
in  the  sunshine  within  the  sacred  precincts  devoted 
to  the  repose  of  the  dead  in  the  suburbs  of  every  city 
in  the  land  testify  with  unerring  certainty  that  man 
is  mortal,  and  the  most  effective  efforts  of  the  healing 
art  are  incapable  of  resisting  the  conqueror  of  all."2 

It  has  been  held  that  a  surgeon  was  not  responsible 
for  a  want  of  success  where  he  attended  a  patient 
suffering  from  hip  disease,  and  called  another  physician 
of  experience  in  consultation,  and  they  arrived  at 
the  conclusion  that  the  thigh  was  dislocated,  and  set 
the  same,  and  placed  it  in  a  plaster  cast,  and  visited  the 
patient  continuously  until  he  moved  away  from  the 
city,  using  every  precaution,  but  the  treatment  was 
not  successful.3 

In  an  action  for  malpractice  against  physicians 
and  surgeons  to  recover  for  an  alleged  unskilful  and 
negligent  operation  upon  the  plaintiff's  eye,  which 
resulted  in  injury  and  disease,  the  plaintiff  offered 
to  prove  that  an  operation  was  performed  on  her 
left  eye  by  Dr.  W—  -  on  a  certain  date;  that  prior 
to  the  operation  her  eye  was  strong  and  in  good  con- 
dition, except  as  to  the  affection  of  strabismus.  The 
operation  was  successful  so  far  as  straightening  her 
eye  was  concerned,  but  she  stated  that  afterward 
neither  the  eye  operated  on  nor  the  right  eye  was 
as  strong  as  before.  She  stated  that  sometime  after 
the  operation  she  had  what  she  called  "a  spell  of  sore 

1  McCandless  v.  McWha,  22  Pa.  St.,  261. 

2  Martin  v.  Courtney,  87  Minn.,  200. 

3  Champion  v.  Keith,  17  Okla.,  204. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        135 

eyes."  The  lids  were  afterward  inflamed  and  her 
eye  watered  when  she  was  out  in  the  wind  or  cold. 
When  she  returned  to  school  she  found  her  eyes  were 
weak  and  that  it  was  necessary  to  bring  objects  closer 
to  her  in  order  to  see  clearly.  It  further  appeared 
that  her  father,  brother,  and  sister  were  afflicted 
with  sore  eyes.  Was  the  proof  sufficient  to  sustain  a 
cause  of  action?  The  court  says:  "We  agree  with  the 
district  court  [the  lower  court]  that  it  did  not  show 
the  operation  to  have  been  unskilfully  and  negligently 
performed,  nor  yet  that  the  present  condition  of 
her  eyes  was  the  result  of  the  operation  that  was 
performed.  No  proof  was  offered  of  the  instruments 
used  or  the  manner  in  which  the  operation  was  per- 
formed. No  medical  or  scientific  evidence  was  offered 
showing  the  cause  of  the  present  condition  of  the 
plaintiff's  eyes,  nor  that  the  defendants  were  negligent 
or  careless  in  the  performance  of  the  operation  .  .  . 
and  negligence  cannot  be  presumed.  The  mere  fact 
that  the  plaintiff's  eyes  have  been  weak  and  sore 
since  the  operation  was  performed  does  not  prove 
negligence  in  the  defendants  nor  establish  a  liability 
against  them.  To  maintain  her  action  the  plaintiff 
should  have  offered  the  evidence  of  skilled  witnesses 
to  show  that  the  present  condition  of  her  eyes  was 
the  result  of  the  operation  and  that  it  was  unskilful 
and  negligently  performed."1 

The  failure  of  a  physician  to  effect  a  cure  of  a  dis- 
located clavicle  does  not  of  itself  show  a  want  of 
care  or  skill  in  its  treatment,  where  it  appears  that 
results  are  not  always  satisfactory  under  any  form  of 
treatment,  and  there  is  no  assurance  that  the  bone 
will  permanently  remain  in  place.2 

1  Pettingrew  v.  Lewis,  46  Kan.,  78. 

1  Tomer  p.  Aiken,  126  Iowa,  114;  101  N.  W.,  769 


136  MALPRACTICE  OR  NEGLIGENCE 

Unskilful  treatment  is  not  established  from  the 
mere  fact  that  a  leg  which  has  been  set  is  shorter  than 
the  other.1  But  a  physician  is  not  absolved  from 
liability  for  failure  to  exercise  proper  skill  in  a  particular 
case  by  the  fact  that  the  result  is  as  good  as  is  usually 
obtained  in  like  cases.2 

(c)  Errors  of  Judgment. — Freedom  from  errors  of 
judgment  is  never  contracted  for  by  the  physician. 
Ordinary  good  judgment  is  necessarily  implied  in  the 
possession  of  ordinary  skill,  and  if  such  share  of  judg- 
ment is  fairly  exercised  any  risk  from  mere  errors 
and  mistakes  is  upon  the  employer  alone.  The  patient, 
too,  has  judgment  to  exercise  in  the  selection  of  the 
physician  whom  he  will  employ;  and  if  he  makes  a 
bad  selection,  if  he  fails  to  choose  a  man  of  the  best 
judgment,  the  result  is  fairly  to  be  attributed  to  his 
own  mistake,  and  is  not  to  be  visited  upon  the  man 
who  has  honestly  done  his  best  endeavor  in  his  service. 
It  is  in  accordance  with  these  views  that  it  has  often 
been  held  that  a  physician  is  not  responsible  for  errors 
of  judgment,  for  mere  mistakes,  in  cases  of  reasonable 
doubt  and  uncertainty.3  A  physician's  error  of  judg- 
ment in  the  treatment  of  a  case  does  not  amount  to 
malpractice,  unless  so  gross  as  to  be  inconsistent  with 
due  care;  nor  can  malpractice  be  inferred  from  the 
mere  result  of  the  treatment.4 

A  medical  man,  for  instance,  is  not  bound  to  form 
a  right  judgment  as  to  sanity  so  as  to  be  liable  in  an 
action  if  he  does  not.  And  yet  in  one  case  the  court 

1  Piles  v.  Hughes,  10  Iowa,  579. 

*  Burke  v.  Foster,  114  Ky.,  20;  69  S.  W.,  1096. 

3  Jackson  v.  Burnham,  20  Colo.,  532;  Fisher  v.  Niccolls,  2  111.  App.,  484; 
Vanhooser  v.  Berghoff,  90  Mo.,  487;  3  S.  W.,  72;  MacKenzie  v.  Carman,  103 
App.  Div.  (N.  Y.),  246;  Leighton  v.  Sargeant,  7  Foster  (N.  H.),  460;  Heath 
v.  Glisan,  3  Or.,  64;  Graham  v.  Gautier,  21  Tex.,  in;  Dye  v.  Corbin,  59  W. 
Va.,  266;  53  S.  E.,  147. 

4  Wilkins'  Admr.  v.  Brock  and  Rosselle,  81  Vt.,  332. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        137 

seemed  to  hold  that  because  the  surgeon  erred  in 
judgment  in  riot  cutting  off  a  fimb  nearer  the  body 
he  was  liable;  the  result  being  that  judgment  was 
rendered  against  him  not  because  he  failed  to  remove 
the  whole  limb,  but  because  he  failed,  as  it  was  thought, 
to  remove  it  a  few  inches  higher  up.1  When  a  skilful 
and  careful  surgeon  exercises  his  best  judgment  in  a  case 
of  doubt  he  cannot  be  held  liable  for  want  of  success.2 

The  rule  that  error  of  judgment  is  not  malpractice 
has  no  application  in  case  of  a  person  who  knows 
nothing  of  anatomy,  surgery,  or  physics,  since  he 
can  have  no  judgment  in  the  matter.3  Also,  the  error 
of  judgment  may  be  so  gross  as  to  be  inconsistent 
with  that  degree  of  care  and  skill  that  it  is  the  duty 
of  every  surgeon  to  possess.4  But  want  of  requisite 
qualifications  is  not  shown  by  proving  that  a  physician 
was  discharged  by  a  patient  and  another  physician 
hired  who  changed  the  treatment.5  The  justification 
for  this  rule  lies  in  the  nature  of  the  undertaking  and 
the  subject  matter  with  which  medical  men  deal. 

On  the  human  subject  matter  with  which  physi- 
cians have  to  do  the  remarks  of  Judge  Upton,  quoting 
partly  from  a  supreme  court  decision  in  Pennsylvania, 
cannot  be  improved  upon:  "The  surgeon  does  not  deal 
with  inanimate  or  insensate  matter  like  the  stone- 
mason or  the  bricklayer,  who  can  choose  his  materials 
and  adjust  them  according  to  mathematical  lines,  but 
he  has  a  suffering  human  being  to  treat,  a  nervous 
system  to  tranquilize,  and  an  excited  will  to  regulate 
and  control.  Where  a  surgeon  undertakes  to  treat 
a  fractured  limb  he  has  not  only  to  apply  the  known 

1  Howard  p.  Grover,  28  Me.,  97. 

*  Williams  P.  Poppleton,  3  Or.,  139. 

*  Jackson  p.  Burnham,  20  Colo.,  532. 
4  West  P.  Martin,  31  Mo.,  375. 

*  Farrell  P.  Haze,  157  Mich.,  374. 


138  MALPRACTICE  OR  NEGLIGENCE 

facts  and  theoretical  knowledge  of  his  science,  but  he 
may  have  to  contend  with  very  many  hidden  and 
powerful  influences,  such  as  want  of  vital  force,  habit 
of  life,  hereditary  disease,  the  state  of  the  climate. 
These  or  the  mental  state  of  his  patient  may  often 
render  the  management  of  a  surgical  case  difficult, 
doubtful,  and  dangerous;  and  may  have  greater 
influence  in  the  case  than  all  the  surgeons  may  be  able 
to  accomplish  even  with  the  best  of  skill  and  care."1 

Another  practical  reason  for  the  exception  to  the 
ordinary  rule  in  negligence  cases  is  the  inherent  and 
inevitable  uncertainty  of  available  testimony.  The 
basis  of  the  proof  of  negligence  and  of  the  hypothetical 
questions  to  plaintiff's  experts  is  naturally  the  narrative 
of  family  and  friends  of  the  patient.  Their  testimony 
must  ordinarily  be  unsatisfactory  because  of  the 
presence  of  natural  bias,  the  absence  of  technical 
knowledge  essential  to  proper  observation,  and  often 
the  want  of  opportunity  for  actual  perception.  "The 
physician,"  said  Judge  Upton,  "is  liable  to  have  his 
acts  misjudged,  his  motives  suspected,  and  the  truth 
colored  or  distorted,  even  where  there  are  no  dis- 
honest intentions  on  the  part  of  his  accusers.  And  from 
the  very  nature  of  his  duty,  he  is  constantly  liable  to 
be  called  upon  to  perform  the  most  critical  operations 
in  the  presence  of  persons  united  in  interest  and 
sympathy  by  the  ties  of  family,  where  he  may  be  the 
only  witness  in  his  own  behalf."2 

(d)  Necessity  of  Following  Established  Modes  of 
Practice. — The  law  very  wisely  requires  that  some 
standard  by  which  to  determine  the  propriety  of 
treatment  must  be  adopted;  otherwise  experiment 
would  take  the  place  of  skill,  and  the  reckless  experi- 

1  Williams  v.  Poppleton,  3  Or.,  139. 

2  Ibid. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        139 

mentalist  the  place  of  the  educated  experienced 
practitioner.1 

Before  it  can  be  said  that  there  is  any  established 
mode  of  treatment,  it  must  appear  that  according  to 
the  general  consensus  of  opinion  of  medical  men,  that 
it  is  so  considered,  and  is  followed  by  the  ordinary 
practitioner.  Physicians  are  bound  by  what  is  uni- 
versally settled  in  the  profession  and  not  by  the  mere 
fact  that  some  writers  on  the  treatment  of  a  certain 
ailment  or  that  practical  surgeons  prescribe  a  certain 
mode  of  treatment.2 

A  reckless  disregard  of  a  new  discovery,  and  an 
adhesion  to  a  once  approved  but  exploded  or  abandoned 
practice  resulting  in  injury  to  a  patient,  will  give  a 
cause  of  action.  But,  on  the  other  hand,  no  medical 
man  can  be  bound  to  resort  to  any  practice  or  remedy 
that  has  not  had  the  test  of  experience  to  recommend 
it,  and  a  physician  or  surgeon  resorting  to  such  new 
practice  or  remedy  with  injurious  consequences  follow- 
ing, would  be  more  liable  to  an  action  than  one  who 
with  like  result  followed  the  beaten  track.  Without 
experiment  there  would  be  no  progress  in  medical 
or  any  other  science.  Still  he  who  tries  the  experi- 
ment and  thereby  injures  another  must  take  the 
consequences.  It  is  sufficient  if  the  practitioner 
follow  a  known  and  recognized  system.3  It  matters 
not  then  how  much  skill  a  physician  or  surgeon  may 
have  if  he  does  not  follow  the  established  mode  of 
practice  in  the  particular  case.  This  fact  may  be 
taken  by  the  jury  as  evidence  of  the  want  of  such 
skill.4 

1  Tefft  v.  Wilcox,  6  Kan.,  46;  Hesse  v.  Knippel,  I  Brown  (Mich.),  109. 
1  Burnham  v.  Jackson,  I  Colo.  App.,  237;  28  Pac.,  250. 
1  Williams  v.  Poppleton,  3  Or.,  139. 

4  Jackson  v.  Burnham,  20  Colo.,  532;  Patten  t>.  Wiggin,  51  Me.,  599;  Car- 
penter v.  Blake,  60  Barb.  (N.  Y.),  488. 


140  MALPRACTICE  OR  NEGLIGENCE 

But  to  show  the  want  of  skill,  it  is  never  sufficient 
to  prove  that  the  physician  has  not  treated  in  that 
mode  nor  used  those  measures  which  in  the  opinion 
of  other  medical  men  the  case  required.1  In  the 
Colorado  case  just  cited  the  plaintiff  had  phimosis,  and 
the  physician  in  attendance  applied  a  flaxseed-meal 
poultice,  which  aggravated  the  disease  and  accelerated 
gangrene,  and  resulted  in  the  loss  of  the  organ. 

Directing  a  person  with  a  broken  arm  to  bathe 
it  with  wormwood  and  vinegar,  although  condemned 
by  experts,  is  not  such  a  departure  from  established 
practice  as  will  justify  a  recovery  against  the  surgeon, 
there  being  nothing  to  show  that  it  would  cause 
injury.2 

(e)  As  Measured  by  the  Practice  of  the  Particular 
School. — The  general  rule  of  law  is  that  a  physician 
or  surgeon,  or  one  who  holds  himself  out  as  such, 
whether  duly  licensed  or  not,  when  he  accepts  an 
employment  to  treat  a  patient  professionally,  must 
exercise  such  reasonable  care  and  skill  in  that  behalf 
as  is  usually  possessed  and  exercised  by  physicians 
or  surgeons  in  good  standing  of  the  same  school  or 
system  of  practice.3  All  the  physician  undertakes  is 
that  he  will  faithfully  treat  the  case  according  to  the 
recognized  rules  of  his  particular  school.4  Thus  a 
homeopathic  physician  who  gives  to  a  case  the  treat- 
ment prescribed  by  his  school  of  practice  is  entitled 
to  have  the  rules  of  his  school  applied  in  determining 
whether  or  not  he  was  guilty  of  malpractice.5 

1  Carter  v.  Fernald,  McClelland's  Civil  Malpractice,  19. 

2  Winner  v.  Lathrop,  67  Hun.  (N.  Y.),  5ji. 

3  Force  v.  Gregory,  63  Conn.,  167;  27  Atl.,  1116;  Bowman  v.  Woods,  I 
Greene  (la.),  441;  Patten  v.  Wiggins,  51  Me.,  594;  Martin  v.  Courtney,  75 
Minn.,  255;  Nelson  v.  Harrington,  72  Wis.,  591 ;  40  N.  W.,  228. 

4  Patten  v.  Wiggins,  51  Me.,  594. 

•Force  v.  Gregory,  63  Conn.,   167;  27  Atl.,   1116;  Martin  v.  Courtney, 
75  Minn.,  255. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        141 

In  an  action  against  osteopaths  for  malpractice 
the  defendant's  treatment  must  be  tested  exclusively 
by  the  principles  and  practice  of  the  school  of  oste- 
opathy.1 

A  physician  of  another  school  is  incompetent  to 
express  an  opinion  as  to  the  correctness  of  the  treat- 
ment given  by  an  osteopath  in  case  of  disease  of  the 
hip,  unless  it  appears  that  both  schools  employ  the 
same  treatment  in  such  cases.  But  a  physician  of 
one  school  may  testify  as  to  the  correctness  of  the 
diagnosis  of  a  case  which  one  of  another  school  treated 
as  dislocation  of  the  hip-joint,  where  the  diagnosis 
of  dislocation  and  of  disease  of  the  joint  is  the  same 
in  all  schools  of  medicine,  as  the  bias  or  prejudice 
of  one  school  of  medicine  against  another  cannot 
affect  the  question  of  diagnosis,  however  much  it 
might  affect  the  treatment  employed  by  the  other 
school.2 

Christian  Scientists. — A  Christian  Scientist  is  bound 
to  exercise  the  care,  skill,  and  knowledge  not  of  the 
ordinary  physician,  but  of  the  ordinary  person  who 
undertakes  to  treat  diseases  according  to  the  methods 
of  such  healers.3  For  as  is  said  in  Story  on  Bailments, 
Sec.  435:  "If  a  person  will  knowingly  employ  a 
common  matmaker  to  weave  or  embroider  a  fine 
carpet,  he  must  impute  the  bad  workmanship  to  his 
own  folly.  So  if  a  man  who  has  a  disorder  of  his  eye 
should  employ  a  farrier  to  cure  the  disease,  and  he 
should  lose  his  sight  by  using  the  remedy  prescribed 
in  such  cases  for  horses,  he  would  certainly  have  no 
legal  ground  for  complaint;"  and  in  cases  involving 
the  liability  of  medical  practitioners,  courts  have 

1  Wilkins'  Admr.  r.  Brock  and  Rosselle,  81  Vt.,  332. 

1  Grainger  v.  Still,  187  Mo.,  197. 

1  Spead  v.  Tomlinson,  73  N.  H.,  46;  59  All.,  376. 


142  MALPRACTICE  OR  NEGLIGENCE 

held  that:  "If  there  are  distinct  and  differing  schools 
of  practice,  as  allopathic  or  old  school,  homeopathic, 
Thompsonian,  hydropathic  or  water  cure,  and  a  physi- 
cian of  one  of  those  schools  is  called  in,  his  treatment 
is  to  be  tested  by  the  general  doctrines  of  his  school, 
and  not  by  those  of  other  schools."1  So  where  an 
adult  person  suffering  from  an  attack  of  appendicitis 
applies  to  a  Christian  Scientist,  who  held  himself 
out  as  competent  to  treat  diseases,  for  treatment, 
she  knew  that  she  would  not  receive  the  same  kind 
of  treatment  as  that  given  by  physicians  of  the  regular 
school  and  cannot  afterward  complain  that  the  method 
was  improper.2 

X-ray  Operator. — The  so-called  x-rays  discovered 
by  Rontgen  have  been  recognized  and  known  to 
scientists,  both  in  and  out  of  the  medical  profession, 
since  1895.  During  this  time  the  apparatus  for  the 
generation  of  the  x-rays,  together  with  the  fluoroscope, 
has  been  used  very  generally  by  electricians,  professors 
of  physics,  skiagraphers,  physicians,  and  others  for 
experimental  and  demonstrative  purposes.  It  is  a 
scientific  and  mechanical  appliance  the  operation  of 
which  is  the  same  in  the  hands  of  the  college  professor 
or  the  physician  of  the  allopathic,  homeopathic,  or 
any  other  school  of  medicine.  Hence  a  physician  who 
applies  the  x-rays  not  for  medical  purposes,  but  to 
locate  the  gold  crown  of  a  tooth  supposed  to  have 
been  inhaled  into  the  lungs  of  his  patient,  is  not 
entitled  to  have  the  question  of  his  care  and  skill 
in  applying  the  x-rays  determined  by  the  opinions  of 
physicians  of  his  own  school.3 


1  Carpenter  v.  Blake,  60  Barb.  (N.  Y.),  488;  Bowman  v.  Woods,  I  G.  Gr. 
(la.),  441. 

2  Spead  v.  Tomlinson,  73  N.  H.,  46. 

3  Henslin  t».  Wheaton,  91  Minn.,  219,  97  N.  W.,  882, 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        143 

Botanic  Physician. — A  person  professing  to  follow 
the  botanic  system  of  practising  cannot  be  expected 
by  his  employer  to  practise  any  other.  While  the 
regular  physician  is  expected  to  follow  the  rules  of 
the  old  school  in  the  art  of  curing,  the  botanic  physi- 
cian must  be  equally  expected  to  adhere  to  his  adopted 
method.  Thus  in  an  action  against  a  botanic  physician, 
who  had  attended  the  plaintiff  at  childbirth  and  had 
not  removed  the  placenta  for  thirty-six  hours  after 
the  accouchement,  the  physician  was  entitled  to  set 
up  the  defence  that  according  to  the  botanic  system 
of  practice  in  medicine  it  was  improper  to  remove 
the  placenta,  and  that  it  should  be  permitted  to 
remain  until  expelled  by  efforts  of  nature.1 

Clairvoyant. — A  clairvoyant  physician  is  liable  for 
failure  to  exercise  the  ordinary  skill  and  knowledge 
of  a  physician  in  good  standing,  practising  in  the 
vicinity,  and  not  merely  the  ordinary  skill  and  knowl- 
edge of  clairvoyants.  If  he  holds  himself  out  as  a 
medical  expert  and  accepts  employment  as  a  healer 
of  diseases,  but  relies  for  diagnosis  and  remedies 
upon  some  occult  influence  exerted  upon  him,  or  some 
mental  intuition  received  by  him  when  in  an  abnormal 
condition,  he  takes  the  risk  of  the  quality  or  accuracy 
of  such  influence  or  intuition.2 

(/)  As  Dependent  upon  the  Locality  of  Practice.— 
In  determining  what  constitutes  reasonable  and  ordi- 
nary care,  skill,  and  diligence,  the  test  is  that  which 
physicians  and  surgeons  in  the  same  general  line  of 
practice  ordinarily  have  and  exercise  in  like  manner,3 
or  that  which  is  ordinarily  possessed  by  those  practis- 
ing in  similar  localities,  not  necessarily  being  limited 

1  Bowman  ».  Woods,  I  Greene  (Iowa),  441. 

1  Nelson  v.  Harrington,  72  Wis.,  591,  40  N.  W.,  228. 

1  Force  P.  Gregory,  63  Conn.,  167. 


144  MALPRACTICE  OR  NEGLIGENCE 

to  that  which  is  in  fact  exercised  in  his  particular 
locality.1 

As  was  said  in  an  Indiana  case:  "It  seems  to  us 
that  surgeons  and  physicians  practising  in  small  towns 
or  rural  or  sparsely  populated  districts,  are  bound  to 
possess  and  exercise  at  least  the  average  degree  of 
skill  possessed  by  and  exercised  by  the  profession  in 
such  localities  generally.  It  will  not  do,  as  we  think, 
to  say  that  if  a  surgeon  or  physician  has  exercised 
such  a  degree  of  care  and  skill  as  is  ordinarily  exercised 
in  the  particular  locality  where  he  practises  it  will 
be  sufficient.  There  might  be  but  few  practising  in 
the  given  locality,  all  of  whom  might  be  quacks, 
ignorant  pretenders  to  knowledge  not  possessed  by 
them,  and  it  would  not  do  to  say  that  because  one 
possessed  and  exercised  as  much  skill  as  the  others 
he  could  not  be  chargeable  with  want  of  reasonable 
skill."2 

There,  are  authorities,  however,  which  tend  to 
support  the  rule  that  a  physician  and  surgeon  are  bound 
to  exercise  only  such  a  degree  of  care  as  is  ordinarily 
exercised  in  their  profession  in  the  particular  locality 
in  which  they  practise.3 

(g)  As  Affected  by  the  Advanced  State  of  the  Pro- 
fession.— A  physician  or  surgeon  is  under  obligation 
to  possess,  and  it  is  his  duty  to  employ  in  the  treat- 
ment of  a  case,  such  reasonable  skill  and  diligence 
as  is  ordinarily  possessed  and  exercised  by  members 
of  his  profession;  and  in  judging  of  this  degree  of 

1  Gramm  v.  Boener,  56  Ind.,  497;  Whitesell  v.  Hill,  101  Iowa,  629;  70  N.  W., 
750;  Ferrell  v.  Ellis,  128  Iowa,  614;  105  N.  W.,  993;  Burke  v.  Foster,  114  Ky., 
20;  68  S.  W.,  1096;  Small  v.  Howard,  128  Mass.,  136;  McCracken  v.  Smathers, 
122  N.  C.,  799;  29  S.  E.,  354;  Bigney  v.  Fisher,  26  R.  I.,  402;  59  Atl.,  72; 
Dye  v.  Corbin,  59  W.  Va.,  266. 

2  Gramm  v.  Boener,  56  Ind.,  497. 

3  Pike  v.  Honsinger,  155  N.  Y.,  201;  Hathhorn  v.  Richmond,  48  Vt.,  557; 
Nelson  v.  Harrington,  72  Wis.,  591. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED         145 

skill,  regard  is  to  be  had  to  the  advanced  state  of  the 
profession  at  the  time.1 

Practice  which  might  have  sanctioned  operations 
performed  two  hundred  years  ago  would  put  a  physi- 
cian or  surgeon  today  in  a  sorry  plight;  he  must  keep 
up  with  the  times  and  practise  in  accordance  with 
the  most  advanced  and  improved  teachings  of  his 
profession. 

Thus  we  have  an  account  of  "a  bone  setter,  named 
Richard,  famous  in  the  neighborhood  of  Napoleon 
Vendee,  but  still  more  famous  by  reason  of  having 
been  fined  five  francs,  which  made  him  a  martyr, 
and  increased  his  practice  fivefold  (who)  was  con- 
sulted on  June  4,  1853,  by  a  farmer  of  the  commune 
of  St.  Dennis,  who  complained,  after  a  heavy  fall, 
of  a  violent  pain  in  the  neck.  The  bonesetter  telling 
him  he  would  put  his  neck  right,  seized  his  head  in 
both  hands,  and  by  a  rapid  motion  from  left  to  right, 
turned  the  head  over  the  shoulder  three  times.  At 
the  third  time  a  crack  was  heard,  and  the  bone  setter 
exultantly  exclaimed:  'It  is  done;  the  neck  is  reduced.' 
But  at  this  very  instant  the  patient  was  seized  with 
paralysis  of  the  arms  and  legs;  his  speech  became 
very  difficult;  he  complained  of  violent  pain,  and  died 
the  next  day,  firmly  convinced  of  the  skill  of  the 
operator,  asserting  to  the  last  that  his  neck  was 
properly  set.  Examination  of  the  body  showed  an 
effusion  of  blood  at  the  level  of  the  second  and  third 
vertebrae,  the  ligaments  between  which  were  stretched 
and  torn;  there  was  another  effusion  between  the  cere- 
bellum and  the  base  of  the  skull,  evidently  arising 
from  lesion  of  the  cord  and  its  membranes."1 

'Smothers  r.  Hanks,  34  Iowa,  286;  Small  r.  Howard,   128  Mass.,  131; 
McCandless  r.  McWha.  22  Pa.,  261;  Nelson  v.  Harrington,  72  Wis.,  591. 
1  2  Wh.  and  St.  (part  2),  Sec.  811. 
10 


146  MALPRACTICE  OR  NEGLIGENCE 

An  amputation  which  would  have  been  justified 
forty  years  ago  would  now  constitute  clear  evidence 
of  unskilfulness. 

(ti)  As  Affected  by  Nature  of  Ailment. — The  state 
of  health  of  a  patient  may  have  much  to  do  in  deter- 
mining whether  or  not  ordinary  diligence  and  care 
have  been  used  by  the  attending  physician  to  affect 
a  cure.  What  might  be  ordinary  care  in  some  circum- 
stances would  be  gross  negligence  in  others.  Thus  a 
disease,  such  as  iritis,  known  to  be  rapid  and  dangerous 
will  require  more  instant  and  careful  attention  than 
that  required  in  rheumatism,  where  little,  perhaps 
nothing,  can  be  done  hastily. 

But  the  condition  the  patient  is  in  when  the  physi- 
cian is  called  does  not  control  the  right  of  action,  it 
affects  the  question  of  damages  only.  The  right  of 
action  depends  upon  the  continuing  or  intervening 
conditions  that  are  due  to  a  neglect  of  duty  on  the 
part  of  the  physician,  after  the  patient  is  in  a  condi- 
tion that  may  result  in  permanent  loss  of  life  or  limb, 
and  the  physician  has  been  called  upon  and  has  under- 
taken to  exercise  his  skill  in  arresting  the  progress  of 
the  disease  in  caring  for  the  wounds  or  setting  the 
broken  bones.1 

({)  As  Affected  by  Habits  and  Tendencies. — A 
surgeon  has  not  only  to  contend  with  the  manipula- 
tion of  a  fractured  limb,  and  a  physician  with  adminis- 
tering of  the  proper  remedy,  but  both  have  to  con- 
tend with  very  many  powerful  and  hidden  influences, 
such  as  the  habits,  hereditary  tendencies,  vital  force, 
mental  state,  and  local  circumstances  of  the  patient. 
These  may  often  render  the  management  of  the  case 
difficult,  doubtful,  and  dangerous;  and  may  explain 

1  Mullin  v.  Flanders,  73  Vt.,  95;  50  Atl.,  813. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED         147 

his    ill    success    and    moderate    the    degree    of    his 
responsibility.1 

"Many  laws  of  nature  applicable  to  the  administra- 
tion of  remedies  for  the  diseases  of  the  human  body 
are  not  fully  understood;  many  are  unknown.  In 
obedience  to  an  occult  law  an  approved  remedy  may 
fail.  Symptomatic  indications  often  refuse  to  inform 
the  physician  or  surgeon  of  the  real  disease  which 
his  skill  is  called  upon  to  combat,  and  an  autopsy 
reveals,  too  late,  conditions  of  the  organs  of  the  patient, 
that  could  have  been  discovered  in  no  other  way, 
which  demanded  a  different  course  of  treatment.  As 
it  is  impossible  for  the  physician  or  surgeon,  possess- 
ing even  the  highest  degree  of  skill,  always  to  act 
rightly  and  truly  as  he  ought,  the  practitioner  should 
not  be  held  liable  if,  in  the  faithful  and  honest  exercise 
of  ordinary  skill,  which  is  only  demanded,  he  fails  to 
use  the  right  remedy."2 

As  was  said  in  a  late  Minnesota  case:  "Physicians 
and  surgeons  deal  with  progressive  inductive  science. 
On  two  historic  occasions  the  greatest  surgeons  in 
our  country  met  in  conference  to  decide  whether  or 
not  they  should  operate  upon  the  person  of  the  Presi- 
dent of  the  United  States.  Their  conclusion  was  the 
final  human  judgment.  They  were  not  responsible 
in  law,  either  human  or  divine,  for  the  ultimate  decree 
of  nature.  The  same  tragedy  is  enacted  in  a  less  con- 
spicuous way  every  day  in  every  part  of  the  country.  ' 
The  same  principles  of  justice  apply."3 

On  the  other  hand  it  would  seem  that  a  surgeon  is 
bound  to  inform  himself  of  these  facts,  so  far  at  least 
as  they  would  be  likely  to  influence,  in  the  manage- 

1  Staloch  P.  Hohn,  100  Minn.,  276;  Williams  v.  Poppleton,  3  Or.,  139. 
1  Almond  v.  Nugent,  34  la.,  300. 
1  Staloch  v.  Hohn,  100  Minn.,  276. 


148  MALPRACTICE  OR  NEGLIGENCE 

ment  of  the  case,  by  a  prudent  physician.  As,  for 
example,  a  physician  about  to  administer  an  anes- 
thetic is  .bound  to  inform  himself  as  to  the  condition 
of  the  plaintiff's  lungs,  heart,  or  otheV  organs,  which, 
if  unsound,  would  warn  a  prudent  physician  against 
the  administration  of  that  beneficent  agency.1  But 
a  physician  using  chloroform  as  an  anesthetic  is  not 
answerable  for  negligence  because  of  results  arising 
from  the  peculiar  condition  or  temperament  of  the 
patient,  of  which  he  had  no  knowledge.2 
,  (j)  Where  Services  are  Gratuitous. — The  fact  that 
a  physician  or  surgeon  renders  services  gratuitously 
does  not  affect  his  duty  to  exercise  reasonable  and 
ordinary  care,  skill,  and  diligence.3 

A  surgeon  or  physician,  therefore,  who  is  the  regular 
surgeon  or  physician  of  a  hospital  owes  precisely  the 
same  duty  with  reference  to  the  care  he  shall  use  to 
a  charity  patient  as  he  does  to  a  patient  who  pays 
him  for  his  services  and  is  liable  for  neglect  accord- 
ingly. As  was  said  by  the  Court  of  Appeals  of  New 
York  State:  "Whether  a  patient  be  a  pauper  or  a 
millionaire,  whether  he  be  treated  gratuitously  or 
for  a  reward,  the  physician  owes  him  precisely  the 
same  measure  of  duty  and  the  same  degree  of  skill 
and  care.  He  may  decline  to  respond  to  the  call  of  a 
patient  unable  to  compensate  him,  but  if  he  under- 
takes the  treatment  of  such  a  patient  he  cannot  defeat 
a  siiit  for  malpractice  or  mitigate  a  recovery  against 
him  on  the  principle  that  the  skill  and  care  required 


1  Jones  v.  Fay,  4  Post.  &  F.,  525. 

2  Bogle  v.  Winslow,  5  Phila.  (Pa.),  136. 

3  Georgia — Akridge  v.  Noble,  114  Ga.,  949.     Illinois — McNevins  v.  Lowe, 
40  111.,  209.     Iowa — Peck  t1.  Hutchinson,  88  la.,  320.     New  Hampshire  — 
Edwards  v.  Lamb,  69  N.  H.,  599.    New  York — Du  Bois  v.  Decker,  130  N.  Y., 
325.     North  Carolina — Gladwell  v.  Steggall,  5  Bing,  733.     Pennsylvania  — 
McCandless  v.  McWha,  22  Pa.,  261. 


or  CARE  AND  SKILL  REQUIRED     149 

of  a  physician  are  proportioned  to  his  expectation  of 
pecuniary  recompense."1 

(&)  Degree  of  Care  and  Skill  Required  of  Specialists. 
-The  measure  of  duty  of  tthe  specialist  is  measured 
not  by  that  knowledge  and  skill  possessed  and  exercised 
by  general  practitioners  in  his  locality,  but  by  special- 
ists, for  he  holds  himself  out  as  having  greater  knowl- 
edge and  skill  in  his  particular  line  than  has  the  general 
practitioner.  A  specialist  is  bound  to  exercise  the 
degree  of  care  and  skill  which  is  ordinarily  possessed 
by  physicians  who  devote  special  attention  and  study 
to  particular  diseases.2 

Thus  a  physician  who  for  twelve  years  specializes 
his  practice  to  treatment  of  diseases  of  the  eye,  and 
is  placed  in  charge  of  the  eye,  ear,  and  throat  depart- 
ment of  a  hospital  of  high  standing,  and  is  advertised 
by  its  literature  as  its  ophthalmologist,  will  be  held 
responsible  as  a  specialist  for  treatment  of  the  eye, 
and  is  liable  in  damages,  where  a  person  injured  by 
the  fragment  of  an  exploded  railroad  torpedo  striking 
him  under  the  inner  corner  of  the  eye  and  cutting 
the  lower  lid  so  that  it  hung  down  over  the  cheek, 
disclosing  a  wound  under  th'e  eyeball  into  the  socket, 
was  treated  by  a  physician  for  a  week,  who  being  con- 
vinced that  there  was  a  foreign  substance  in  the  eye, 
sent  the  patient  to  such  eye  specialist,  who  made  only 
an  external  examination,  gave  the  eye  attention  for 
a  few  days,  and  then  sent  the  patient  home,  assuring 
him  that  there  was  nothing  in  the  eye,  when  the 
original  physician  operated  on  the  eye  and  removed  a 
piece  of  tin  nearly  an  inch  long  and  half  an  inch  wide, 
which  was  buried  in  the  tissues.3 

1  Du  Bois  v.  Decker,  130  N.  Y.,  325. 

1  Baker  p.  Hancock  (Ind.),  63  N.  E.,  323;  Feeney  p.  Spalding  (Me.),  35 
Atl.,  1027;  Rann  v.  Twitchell,  82  Vt.,  79. 
1  Rann  p.  Twitchell,  82  Vt..  79;  71  Atl..  1045. 


150 

One  who  holds  himself  out  as  an  expert  in  the 
treatment  of  hernia  is  required  to  treat  patients  with 
the  care  and  skill  commonly  shown  by  physicians 
and  surgeons  in  his  city,  and  cities  in  advance  or 
abreast  of  it,  in  the  practice  of  medicine  and  surgery, 
who  devote  special  study  to  the  treatment  of  the 
disease.1 

(/)  In  the  Use  of  Anesthetics. — A  physician  or 
surgeon  using  chloroform  as  an  anesthetic  agent  is 
only  bound  to  look  to  natural  and  probable  effects. 
He  is  not  answerable  for  negligence  on  results  arising 
from  the  peculiar  condition  or  temperament  of  the 
patient  of  which  he  had  no  knowledge.2  But  they 
must  use  the  highest  professional  care  and  skill  to 
avoid  every  possible  danger  where  they  put  a  patient 
under  the  influence  of  an  anesthetic  and  deprive 
him  of  the  use  of  his  faculties.3  As  an  illustration 
of  an  alleged  malpractice  case  for  the  death  of  a  boy 
from  the  effects  of  chloroform  administered  in  an 
operation  to  prevent  blood  poison  we  cite  the  follow- 
ing case:  "According  to  the  testimony  of  Dr.  W-  — , 
he  found  the  patient  suffering  from  blood  poisoning, 
which  was  in  danger  of  becoming  general.  His  tem- 
perature was  more  than  100°,  and  he  knew  positively 
that  blood  poisoning  was  going  to  get  into  his  system. 
He  thereupon  resolved  to  operate  upon  the  boy  that 
day,  to  try  and  save  him  from  this  general  blood 
poisoning.  He  then  questioned  the  patient  as  to 
whether  he  had  had  any  breakfast,  and  he  responded 
that  he  had  had  a  piece  of  meat  and  some  bread. 
He  used  chloroform  as  an  anesthetic  instead  of  some 
other  agent,  because  he  believed  it  was  safe,  and 

1  McClarin  ».  Grenzfelder  (Mo.),  126  S.  W.,  817. 

2  Bogle  t».  Winslow,  5  Phila.,  136. 

3  Keily  v.  Colton,  I  N.  Y.  City  Ct.,  439. 


DEGREE  OF  CARE  AND  SKILL  REQUIRED        151 

better  for  the  child,  who  presented  such  a  bad  appear- 
ance that  the  doctor  did  not  intrust  anybody  else  to 
administer  the  chloroform,  but  gave  it  himself.  Un- 
fortunately the  chloroform  proved  fatal,  because  of  a 
condition  of  the  patient's  system,  described  a  status 
lymphaticus,  not  discoverable  by  any  physical  exami- 
nation that  could  have  been  made  before  death." 

The  court  then  goes  on  to  say:  "I  have  been 
unable  to  find  enough  in  the  proof  offered  by  the 
plaintiff  to  justify  a  finding  that  there  was  any  lack 
of  professional  intelligence,  skill,  or  care  on  the  part 
of  the  defendant,  either  in  deciding  to  perform  the 
operation,  or  in  its  performance,  including  the  adminis- 
tration of  chloroform.  The  plaintiff  sought  to  establish 
such  negligence  by  the  testimony  of  his  medical 
expert,  but  neither  in  answer  to  hypothetical  questions 
nor  in  any  other  part  of  his  testimony  does  he  really 
express  the  opinion  that  what  is  shown  to  have  been 
done  by  the  defendant  was  contrary  to  the  best  or 
established  practice  of  qualified  surgeons  in  the  treat- 
ment of  such  a  case  under  similar  circumstances.  He 
did  testify,  it  is  true,  that  the  administration  of  chloro- 
form is  recognized  as  always  being  accompanied  by 
danger  to  a  patient's  life,  and  that  it  is  the  practice 
of  the  medical  profession  never  to  give  chloroform 
to  a  patient  after  he  has  partaken  of  heavy  food, 
except  in  emergency,  the  customary  practice  being 
to  keep  the  patient  twenty-four  hours  without  food 
before  chloroform  is  given  to  him.  It  is  to  be  noted, 
however,  that  the  test  here  applicable  to  Dr.  W—  -'s 
conduct  is  not  what  the  patient  had  actually  done  in 
the  way  of  taking  food,  but  what  the  patient  told 
Dr.  W-  -  on  that  subject;  and  the  boy's  statement 
to  the  doctor  that  he  had  breakfasted  on  a  piece  of 
meat  and  some  bread  was  not  indicative  of  the  fact 


152  MALPRACTICE  OR  NEGLIGENCE 

that  he  had  taken  a  heavy  meal.  The  case,  instead  of 
being  one  of  negligence,  appears  to  be  only  another 
melancholy  instance  of  death  upon  the  operating 
table  in  a  charity  hospital  of  a  patient  being  treated 
with  a  high  degree  of  skill  and  care  by  a  surgeon  of 
unquestioned  learning.  Such  a  death  is  always  painful 
enough  to  the  conscientious  surgeon  under  whose 
care  it  occurs,  but  it  cannot  subject  him  to  any  legal 
liability  where,  as  in  this  case,  there  is  not  sufficient 
proof  that  he  was  derelict  in  the  performance  of  his 
professional  duty  toward  his  patient."1 

(m)  In  Making  Examinations. — Where  a  physician 
was  employed  to  determine  whether  or  not  a  young 
man  was  afflicted  with  a  venereal  disease,  and  mis- 
takingly  reported  that  he  was,  and  the  result  of  the 
report  was  the  breaking  of  an  engagement  to  marry, 
the  physician  was  held  liable  in  damages,  the  court 
holding  that  the  physician's  duty  of  exercising  ordinary 
diligence,  care,  and  skill  in  a  professional  undertaking 
extended  to  a  case  where  only  information  was  sought; 
and  that  the  breaking  of  an  engagement  was  not  too 
remote  to  sustain  the  action.2 


3.  LIABILITY  FOR  REFUSAL  TO  TAKE  CASE 

A  wrong  impression  as  to  the  duty  of  a  physician 
to  attend  every  sick  person  who  demands  his  services 
seems  to  have  taken  root  in  the  minds  of  a  great 
many  misinformed  persons.  It  is  undoubtedly  the 
law,  that  a  physician  is  not  liable  at  common  law 
for  refusing  to  attend  a  sick  person  who  demands  his 
services,  and  in  at  least  one  State  it  has  been  held 
that  he  is  under  no  obligation  to  respond  to  a  call  by 

1  Wood  v.  Wyeth,  106  App.  Div.  (N.  Y.),  21. 

2  Harriott  v.  Plimpton,  166  Mass.,  588;  44  N.  E.,  992. 


FAILURE  TO  MAKE  PROPER  DIAGNOSIS         153 

reason  of  the  fact  that  he  holds  a  State  license  to 
practise  medicine,  and  although  he  is  a  family  physi- 
cian and  no  other  physician  is  procurable,  and  he  is 
not  liable  for  the  death  of  a  person  caused  by  such 
refusal  to  render  medical  assistance.1 


4.  LIABILITY  FOR  FAILURE  TO  MAKE  PROPER 
DIAGNOSIS 

A  physician  or  surgeon  employed  to  treat  an  injury 
or  disease  impliedly  contracts  that  he  will  use  his 
best  judgment  in  the  application  of  his  skill  in  decid- 
ing upon  the  nature  of  the  disease  or  injury  and  the 
best  mode  of  treatment.2  And  a  surgeon  is  guilty 
of  malpractice  in  treating  as  a  mere  bruise  a  fracture 
of  the  neck  of  the  femur,  where,  when  the  patient  is 
placed  on  his  back,  his  foot  lies  over  on  one  side, 
without  power  on  his  part  to  control  it.3 

So  one  who  suffers  injury  through  the  failure  of 
his  physician  to  discover  and  reduce  a  dislocation 
which  could  have  been  readily  discovered  is  entitled  to 
recover  damages  resulting  from  the  physician's  negli- 
gence.4 But  a  general  practitioner  will  not  be  held 
liable  for  making  a  wrong  diagnosis  of  a  very  rare 
disease  which  can  only  be  detected  by  an  expert. 

Thus  a  general  practitioner  cannot  be  held  liable 
in  damages  to  a  patient  for  diagnosticating  and  treat- 
ing a  disease  of  the  eye  as  conjunctivitis  when  it  was 
in  fact  glaucoma,  where  the  evidence  shows  that 
glaucoma  is  a  very  rare  disease;  that  it  is  incurable  in 
character;  that  its  certain  diagnosis  could  be  made 
only  by  the  skilled  expert,  of  special  training,  skill, 

1  Hurley  r.  Eddingfield,  156  Ind.,  416. 

*  Bonnett  r.  Foote,  47  Colo.,  282.  »  Ibid. 

4  Burton  v.  Xeill,  140  Iowa,  141. 


154  MALPRACTICE  OR  NEGLIGENCE 

and  experience;  that  it  should  be  treated  with  remedies 
and  appliances  which  are  never  expected  to  be  within 
the  reach  of  the  general  practitioner;  that  its  prominent 
symptoms  were  nearly  identical  and  that  the  treatment 
given  was  not  faulty. : 

A  physician  is  not  required  to  be  infallible  in  diag- 
nosticating diseases,  so  that  the  fact  that  a  patient's 
disease  was  different  than  it  was  diagnosticated  to  be 
is  merely  evidence  of  negligence.  Thus  a  physician 
who  treats  a  boy  for  acute  articular  rheumatism  when 
the  boy's  trouble  was  periosteitis  or  osteomyelitis 
is  not  liable  in  an  action  for  malpractice  if  he  was 
possessed  of  reasonable  skill  and  was  reasonably  dili- 
gent, not  negligent,  in  diagnosticating  and  treating 
the  case.2  And  a  surgeon  is  not  negligent  in  failing 
to  take  an  x-ray  photograph  of  an  injured  arm  to 
ascertain  whether  or  not  there  is  a  fracture,  where 
he  diagnosticates  and  treats  the  injury  as  a  sprain, 
which  proves  to  be  erroneous,  and  results  in  permanent 
impairment  of  the  usefulness  of  the  arm.3 

The  breaking  of  a  marriage  engagement  in  conse- 
quence of  a  wrong  diagnosis  is  not  too  remote  a  damage 
to  sustain  an  action  for  malpractice.4 

A  physician  who  improperly  treats  incipient  hip 
disease  as  a  partial  dislocation  of  the  joint,  by  reason 
of  which  the  patient  is  subjected  to  great  sickness 
and  suffering,  and  crippled  for  life,  cannot  escape 
liability  on  the  ground  that  the  same  result  would 
have  ensued  from  the  disease  alone  if  he  had  not 
interfered.5 

An  attending  physician  and  surgeon  is  not  confined 

1  Wohlert  v.  Leibert,  23  Pa.  Super.  Ct.,  213. 

2  Hamrick  v.  Shipp  (Ala.),  52  So.,  932. 

3  Wells  v.  Ferry-Baker  Lumber  Co.,  57  Wash.,  658;   107  Pac.,  869. 

4  Harriott  v.  Plimptons,  166  Mass.,  585. 
6  Grainger  v.  Still,  85  S.  W.,  1114. 


LIABILITY  FOR  XEGLECT  AS  TO  APPLIANCES    155 

to  any  special  test  in  his  examination  of  his  patient 
to  discover  whether  or  not  the  latter's  shoulder-joint 
had  been  injured  by  a  fall,  but  in  regard  to  the  exami- 
nation and  treatment,  he  is  required  to  exercise  that 
reasonable  skill  and  care  which  a  prudent  member 
of  his  profession  should  use  under  the  circumstances.1 
Whether  a  physician,  in  making  a  diagnosis,  used 
ordinary  care  and  skill  is  a  question  of  fact  for  the 
jury.2 

5.  LIABILITY  FOR  MISTAKE  IN  PRESCRIPTION 

A  physician  who  negligently  or  ignorantly  writes 
a  prescription  is  liable  in  damages  for  the  injury 
resulting  therefrom.  Thus  where  a  prescription,  by 
lapsus  clami,  had  pulv.  instead  of  camph.  following 
opii,  as  result  of  which  the  infant  taking  it  dies,  the 
fact  that  the  druggist  who  fills  the  prescription  may 
have  been  negligent  will  not  excuse  the  physician 
writing  it  from  responsibility.3 


6.  LIABILITY  FOR  NEGLECT  AS  TO  APPLIANCES 

Physicians  or  surgeons  are  under  implied  obliga- 
tion when  they  undertake  to  treat  diseases  or  injuries 
to  bring  to  their  aid  such  obtainable  remedies  and 
appliances  as  discovery  and  experience  have  found  to 
be  the  most  proper  and  beneficial  in  aiding  recovery. 
It  has  been  held  that  a  physician  used  proper  appli- 
ances in  the  treatment  of  a  fracture  of  a  wrist,  where 
"he  called  for  pasteboard,  and  there  was  a  basinful 
of  milk-warm  water,  and  he  took  the  pasteboard 
and  cut  it  up  in  two  pieces  and  put  one  on  each  side, 

1  Long  v.  Austin,  153  N.  C.,  508. 

J  Harriott  v.  Plimpton,  166  Mass.,  585. 

*  Mure  lock  P.  Walker,  43  111.  App.,  590. 


156  MALPRACTICE  OR  NEGLIGENCE 

and  put  a  lot  of  cotton  under  them  next  to  my  [the 
patient's]  hand;  then  he  took  a  cotton  strip  and  tied 
that  hand  up.  I  cannot  just  say  how  close  the  strips 
were  to  my  elbow;  he  waited  on  me  right  along;  he 
took  the  splints  off  when  the  time  came  to  take  them 
off;  and  he  took  them  off  once  and  looked  at  the  hand 
eleven  days  between,  and  then  put  them  back."1 

An  interesting  action  for  malpractice,  in  the  use 
of  infected  and  unsterilized  instruments,  was  decided 
in  1908,  in  the  Supreme  Court  of  Washington, 
unfavorably  to  the  physician.  The  plaintiff,  a  widow, 
brought  the  action  against  a  physician  and  surgeon 
in  active  practice  in  that  State  to  recover  for  injuries 
received  by  her  arising  from  alleged  malpractice 
on  the  part  of  such  physician  in  the  use  in  and  on 
her  genital  organs  of  unclean  and  unsterilized  instru- 
ments, whereby  there  was  communicated  to  her  a 
loathsome  disease  technically  known  as  gonorrhea, 
from  which  she  suffered  great  bodily  pain  and  mental 
anguish  to  her  damage  in  a  large  sum  of  money. 
"The  evidence  on  the  part  of  the  patient  tended  to 
show  that  she  had  been  suffering  for  a  number  of 
years  with  some  nervous  affliction;  that  early  in  the 
year  1906  her  trouble  became  more  acute,  when  she 
called  in  the  defendant  to  prescribe  for  her;  that 
he  examined  her  as  to  her  symptoms  and  prescribed 
some  form  of  medicine,  which  she  took  as  directed, 
but  which  gave  her  only  temporary  relief;  that  the 
defendant  thereupon  stated  to  her  that  her  symp- 
toms indicated  some  derangement  of  the  genital 
organs,  and  that  if  she  would  call  at  his  office  he  would 
examine  her  for  the  purpose  of  ascertaining  whether 
any  such  derangement  was  the  source  of  her  ill  health ; 
that  she  called  as  requested,  on  or  about  February  I, 

1  Stevenson  v.  Gelsthorpe,  10  Mont.,  563. 


LIABILITY  FOR  NEGLECT  AS  TO  APPLIANCES     157 

1906,  when  the  doctor  proceeded  to  examine  her 
genital  organs,  using  for  that  purpose  certain  instru- 
ments, called  a  speculum  and  probe,  which  he  took 
from  a  drawer  nearby;  that  the  instruments  when 
taken  from  the  drawer  were  wrapped  in  a  towel,  and 
were  used  upon  her  as  they  were  when  taken  from 
the  towel,  without  being  washed  or  cleaned  in  any 
manner;  that  between  five  and  ten  days  thereafter 
she  began  to  be  troubled  with  inflammation  and  pain 
in  the  parts  affected,  accompanied  by  a  discharge, 
which  gradually  became  more  severe,  causing  her  to 
take  to  her  bed;  that  she  again  called  in  the  defend- 
ant as  her  physician,  stated  to  him  her  trouble,  and 
received  from  him  certain  remedies,  which  she  applied 
as  directed;  that  he  continued  to  treat  her  for  about 
a  month  thereafter,  when  she  notified  him  that  she 
did  not  require  his  services  further;  that  shortly  after 
this  he  called  at  her  residence  and  offered  to  treat 
her  free,  which  she  accepted,  and  for  sometime  there- 
after he  treated  her  medically,  giving  both  internal 
remedies  and  remedies  to  apply  locally  in  the  form 
of  suppositories;  that  during  this  latter  treatment 
he  made  another  examination  with  the  speculum, 
and  stated  to  her  that  she  would  probably  have  to 
be  operated  on  surgically  before  she  could  be  cured; 
that  the  respondent  refused  to  submit  to  such  an 
operation,  whereupon  he  ceased  to  treat  her  further." 
The  patient  further  testified  that  she  was  in  bed 
most  of  the  time  suffering  from  pain  in  the  genital 
region  of  her  body,  accompanied  by  a  discharge  of 
a  purulent  nature,  between  the  time  the  defendant 
quit  treating  her  and  August  15,  1906,  when  she 
consulted  another  physician,  who  pronounced  her 
disease  to  be  gonorrhea;  that  this  physician  treated 
her  for  some  three  months  thereafter,  finally  pro- 


158  MALPRACTICE  OR  NEGLIGENCE 

nouncing  her  substantially  cured.  She  also  testified 
that  her  husband  died  on  January  n,  1906,  and  that 
she  had  not  had  sexual  intercourse  with  him  for  some 
weeks  preceding  his  death.  She  was  not  asked,  and 
did  not  testify  directly,  that  she  had  not  had  sexual 
intercourse  with  any  other  man,  but  did  state  that 
her  husband  had  no  venereal  disease,  and  that  there 
was  no  other  way  than  from  the  defendant's  instru- 
ments by  which  she  could  have  obtained  the  disease. 
The  physician  treating  her  last  also  testified  that 
when  she  called  upon  him  in  August,  1906,  for  treat- 
ment she  was  suffering  from  chronic  gonorrhea,  which 
he  ascertained  not  only  from  her  diagnosis  symptoms, 
but  by  finding  in  the  discharge  from  her  genital  organs 
the  specific  microbe  of  the  disease.  He  testified  also 
as  an  expert  that  the  respondent  could  acquire  the 
disease  from  an  infected  speculum  used  upon  her  in 
the  manner  she  testified  this  one  was  used. 

"The  appellant  [the  physician]  testified  that  he 
was  called  upon  to  treat  the  plaintiff  in  January,  1906, 
when  he  found  her  complaining  with  much  pain  in 
the  side  in  the  region  of  the  liver  and  pleura  and  of 
considerable  pain  in  the  abdomen  and  right  ovary; 
that  later  she  complained  of  soreness  in  the  ovaries 
and  womb  and  some  discharge;  that  he  requested 
her  to  come  to  his  office  for  an  examination;  that  she 
did  come,  and  he  examined  her  genital  organs,  finding 
an  enlarged  condition  of  the  womb,  some  inflamma- 
tion of  the  mucous  membrane,  accompanied  by  a 
discharge;  that  in  making  the  examination  he  used 
a  speculum,  a  probe,  and  forceps;  that  these  instru- 
ments were  kept  on  the  top  of  a  medicine  case  in  his 
office;  that  they  never  were  kept  in  a  drawer;  that 
after  using  them  he  always  washed  them  in  mercuric 
iodine  solution  and  soap  and  hot  water,  and  imme- 


LIABILITY  FOR  NEGLECT  AS  TO  APPLIANCES    159 

diately  before  using  them  he  sterilized  them  by  boiling 
them  in  hot  water  in  a  receptacle  on  a  gas  stove  in 
the  back  part  of  his  office,  and  that  it  was  in  this 
manner  that  these  instruments  had  been  cleaned  and 
sterilized  before  use  on  the  plaintiff;  that  the  last  time 
he  had  used  them  on  the  plaintiff  was  on  January  25, 
which  was  six  days  after  he  had  used  them  on  any 
other  person,  the  last  occasion  using  them  on  a  woman 
suffering  from  chronic  uterine  trouble,  not  gonorrhea, 
and  not  infectious,  and  that  he  had  not  treated  a 
case  of  gonorrhea  in  a  female  for  many  months  prior 
to  the  time  he  treated  the  plaintiff." 

He  further  testified  that  his  office  was  heated 
by  a  steam  heater  operated  only  in  the  day  time; 
that  at  night  the  office  would  become  cold,  running 
down  to  a  temperature  of  from  50°  to  55°  F.  The 
defendant  also  called  a  number  of  expert  witnesses 
who  testified,  in  substance,  that  gonococci,  the  microbes 
of  gonorrhea,  could  not  survive  in  a  temperature  as 
low  as  50°  or  55°  F.  for  any  length  of  time,  certainly 
not  as  long  as  four  days,  especially  upon  a  nickel- 
plated  instrument  such  as  a  speculum.  ...  In 
rebuttal  two  witnesses  testified  that  the  defendant 
had  made  an  examination  upon  them  similar  to  the 
one  made  on  the  plaintiff  in  April,  1906,  and  the 
other  in  June,  1906,  and  that  in  neither  case  did  he 
sterilize  the  instruments  before  using  them;  that 
he  took  them  from  a  drawer,  where  they  were  kept 
wrapped  in  a  towel,  and  used  them  without  cleansing 
or  sterilizing  in  any  manner.1 

McClelland  in  his  work  on  Civil  Malpractice  sets  out 
an  interesting  case  on  the  use  of  improper  instruments 
in  amputations.  This  case,  it  may  be  well  to  remark, 
occurred  in  1871. 

1  Helland  v.  Bridenstine,  55  Wash.,  470. 


160  MALPRACTICE  OR  NEGLIGENCE 

"In  October  [of  the  above  year],  Frederick  Young, 
aged  about  fourteen  years,  living  in  Kerton,  Illinois, 
while  hunting,  accidentally  shot  himself  in  the  right 
forearm.  The  accident  occurred  about  four  o'clock 
in  the  afternoon,  and  a  neighbor  was  immediately 
sent  to  inform  Dr.  Fullerton,  of  Bath,  the  family 
physician,  and  request  his  attendance.  Accompanied 
by  Dr.  Hodnell,  a  dentist,  Dr.  Fullerton  went  to 
Young's,  taking  no  instruments  except  his  small 
pocket  case.  Dr.  Hodnell  proposed  to  go  and  get 
instruments,  but  Dr.  Fullerton  said  he  did  not  think 
they  would  be  needed.  They  arrived  at  Young's 
about  eight  o'clock,  and  found  the  arm  completely 
shattered  to  pieces  at  a  point  about  midway  between 
the  elbow  and  wrist — the  hand  only  hanging  by 
ligaments.  The  boy  had  lost  so  much  blood  that  he 
was  greatly  exhausted.  He  was  placed  under  the 
influence  of  chloroform,  and  the  hand  and  part  of  the 
mangled  flesh  cut  away.  Dr.  Fullerton  then  called 
for  a  saw  to  saw  off  the  bone  above  the  wound.  An 
old  rusty  hand  saw  was  handed  him,  and  according 
to  Dr.  Hodnell's  testimony  and  Mr.  Young's  the 
defendant  made  an  effort  to  saw  off  the  bone  with  that 
coarse,  rusty  saw.  Dr.  Hodnell  protested,  and  told 
him  that  was  horrible.  The  defendant  then  desisted, 
and  sent  Mr.  Young  to  Bath,  to  a  cabinet  maker, 
to  get  a  tenon  saw,  and  some  placew  else,  in  Bath, 
to  get  a  bottle  of  tr.  myrrh.  About  eight  o'clock 
A.M.  [the  next  morning]  Young  returned  with  the 
saw;  the  boy  was  again  put  under  the  influence  of 
chloroform,  and  the  large  bone  of  the  arm  sawed 
off,  the  muscles  and  skin  pulled  over  and  fastened 
with  straps  of  adhesive  plaster,  the  wound  bathed 
with  tincture  of  myrrh,  a  cloth  wet  with  myrrh  and 
sweet  oil  laid  over  it,  and  the  stump  tied  up.  The 


LIABILITY  FOR  NEGLECT  AS  TO  APPLIANCES    161 

small  bone  was  not  cut,  and  no  stitches  were  taken  in 
the  muscles  and  skin.  The  defendant  said  he  made 
'flaps'  by  the  method  known  as  the  circular  operation, 
using  a  portion  of  the  mangled  flesh  (after  trimming 
it  down).  Other  witnesses  testified  that  he  made 
no  flaps,  but  forced  the  muscles  over  the  bone  by 
traction,  or  by  pulling  them  down.  He  directed  the 
wound  to  be  bathed  in  tincture  of  myrrh.  He  fre- 
quently visited  the  boy  and  dressed  the  wound,  and 
told  the  family  it  was  'doing  well.'  The  boy,  however, 
was  sick  for  some  time,  the  arm  suppurated  a  great 
deal,  and  in  about  ten  days  after  the  operation  a 
piece  of  small  bone  came  out  of  the  wound. 

"A  short  time  after  that  the  wound  began  to  heal 
somewhat,  but  left  the  end  of  the  large  bone  exposed. 
All  winter  the  arm  was  very  troublesome,  and  toward 
the  latter  part  of  February,  the  wound  still  being 
painful,  the  defendant  was  called  again,  and  told 
Mr.  Young  another  operation  would  have  to  be  per- 
formed. Young  consulted  another  physician,  who 
examined  the  arm  and  said  it  must  be  re-amputated. 
On  March  10,  Dr.  Deffenbacker,  of  Havana,  Dr. 
Browning,  and  Dr.  Fullerton  were  at  Young's  and 
Dr.  Deffenbacker  performed  a  second  operation,  taking 
the  arm  off  two  inches  farther  up.  He  testified  that 
the  bone  then  protruded  an  inch  or  more  beyond 
the  flesh,  and  was  decayed  or  necrosed.  Dr.  Browning 
testified  to  the  same  effect.  The  wound  after  this 
operation  healed  in  about  ten  days.  .  .  .  The 
surgeon's  duty  in  such  a  case  was,  first,  to  suppress 
any  hemorrhage  that  might  have  been  present.  This 
being  accomplished,  he  should  have  sent  for  the 
proper  instruments,  and  these  instruments  need  not 
have  been  those  expressly  prepared  for  amputating 
limbs.  The  instruments  carried  in  an  ordinary  pocket 


162  MALPRACTICE  OR  NEGLIGENCE 

case,  although  not  the  best,  will  answer  excellently 
for  making  the  flaps  in  an  amputation  of  the  arm, 
whether  it  be  by  the  circular  method,  or  otherwise; 
a  sharp,  keen  butcher  knife  would  perhaps  answer 
better,  and  would  very  properly  be  used  if  the  occa- 
sion required.  For  section  of  the  bones  a  tenon  saw, 
if  in  good  condition,  would  be  a  very  proper  instru- 
ment; so  also  would  a  hand  saw,  but  not  such  an  one 
as  appeared  in  evidence  unless  no  other  instrument 
could  be  procured  within  twenty-four  hours,  which 
evidently  was  not  the  case  in  this  instance.  A  glance 
at  such  an  instrument  should  have  satisfied  the  surgeon 
of  its  unfitness."1 

The  court  in  a  Tennessee  case  which  involved  the 
amputation  of  an  arm  with  a  butcher  knife  and  a 
carpenter's  saw  said:  "It  certainly  requires  some 
degree  of  skill  in  anatomy  and  surgery  to  perform  an 
operation  of  the  kind,  and  the  success  that  attended 
it,  though  not  conclusive,  is  a  circumstance  from  which 
skill  may  be  inferred.  The  instruments  employed, 
drawn  from  other  vocations,  not  the  most  congenial 
for  the  special  occasion,  were  certainly  unusual  and 
extraordinary  for  such  a  purpose.  But  we  are  not  to 
infer  from  this  circumstance  alone  that  the  surgeon 
had  not  sufficient  art  and  skill  in  the  use  of  them; 
besides,  it  is  possible  that  the  delay  necessary  to 
procure  proper  instruments  might  have  been  fatal 
to  the  patient."2 

7.  LIABILITY  FOR  FAILURE  TO  GIVE  PROPER 
INSTRUCTIONS 

It  is  the  duty  of  the  physician  to  give  such  instruc- 
tions as  are  proper  and  necessary  to  enable  the  patient 

1  Young  v.  Fullerton,  Fulton  Circuit  Court  (Ill.)i  quoted  in  McClelland's 
Civil  Malpractice,  p.  253. 

2  Alder  v.  Buckley,  i  Swan  (Tenn.),  69. 


FAILURE  TO  GIVE  PROPER  INSTRUCTIONS       163 

or  his  nurses  and  attendants  to  act  intelligently  in  the 
further  treatment  of  the  case,  and  a  failure  to  do  so 
is  negligence  which  will  render  him  liable  for  injury 
resulting  therefrom.1  A  physician  who  has  set  a 
broken  leg  is  bound  to  give  proper  instructions  for  the 
use  and  care  of  it,  and  for  failure  to  do  so  he  is  liable 
in  case  of  a  resulting  injury.2  "It  is  the  duty  of  the 
surgeon  when  he  takes  charge  of  a  case,  such  as  a 
broken  femur  bone,  to  give  his  patient  all  necessary 
and  proper  instructions  as  to  what  care  and  attention 
the  patient  should  give  his  broken  limb  in  the  absence 
of  the  surgeon,  and  the  caution  to  be  used  in  the  use 
of  the  limb  before  it  is  entirely  healed."3 

If  in  a  case  of  dislocation  of  the  elbow-joint  it  is 
enough  for  the  physician  to  replace  the  bones,  and 
to  put  the  arm  on  a  pillow,  with  the  part  below  the 
joint  at  a  right  angle  with  that  above  it,  and  directing 
the  application  of  cold  water,  it  would  seem  to  be 
proper,  if  not  necessary,  that  the  attending  surgeon 
should  inform  the  patient  or  those  having  charge  of 
him  or  her  of  the  necessity  of  maintaining  that  posi- 
tion; and  if  there  is  a  tendency  in  the  limb  to  become 
straight,  or  if  in  consequence  of  the  severity  of  the 
injury  to  the  ligaments  about  the  joint  there  is  great 
pain,  which  renders  the  patient  nervous  and  restless, 
thus  increasing  the  tendency  to  relaxation  or  to 
straighten,  and  as  a  consequence  to  stiffen  the  joint, 
the  danger  should  be  disclosed,  to  the  end  that  all 
proper  precaution  may  be  taken  to  prevent  it.4 

1  Carpenter  v.  Blake,  60  Barb.  (N.  Y.),  488;  Pike  v.  Honsinger,  155  N.  Y., 
203;  Beck  v.  The  German  Klinik,  78  la.,  696. 
1  Beck  v.  The  German  Klinik,  78  la.,  696. 
1  Fish  v.  Welker,  4  Ohio  Legal  News,  433. 
«  Carpenter  v.  Blake,  60  Barb.,  488. 


164  MALPRACTICE  OR  NEGLIGENCE 


8.  LIABILITY  FOR  ABANDONMENT  OF  CASE 

The  employment  of  a  physician  continues  while 
sickness  lasts,  unless  put  an  end  to  by  the  assent  of 
the  parties  or  revoked  by  the  express  dismissal  of  the 
physician,1  the  character  of  a  physician's  services 
being  such  that  he  cannot  quit  the  services  without 
cause  or  reasonable  notice.2  But  where  the  employ- 
ment of  a  physician  has  been  terminated,  he  may 
refuse  further  attendance,  and  such  refusal,  where 
there  is  no  further  showing  save  that  the  patient  was 
suffering  the  pain  usual  in  such  cases,  will  not  justify 
the  admission  of  evidence  that  the  same  amounted 
to  improper  treatment.3  A  physician  who  leaves 
a  patient  at  a  critical  stage  of  the  disease,  without 
reason,  or  sufficient  notice  to  enable  the  party  to 
procure  another  medical  attendant,  is  guilty  of  a 
culpable  dereliction  of  duty.4 

9.  LIABILITY  FOR  PERFORMING  OPERATION  WITHOUT 
PATIENT'S  CONSENT 

A  physician  is  liable  for  operating  upon  a  patient 
unless  he  obtains  the  consent  of  either  the  patient, 
if  competent  to  give  such  consent,  or,  if  not,  if  some 
one  who,  under  such  circumstances,  would  be  legally 
authorized  to  give  the  requisite  consent.  Consent 
will  be  presumed  in  certain  cases  unless  the  person 
operated  on  has  been  the  victim  of  false  and  fraudulent 
representations,  or  has  been  deliberately  deceived.5 

1  Tomer  v.  Aiken,  126  Iowa,  114;  Lawson  v.  Conaway,  37  W.  Va.,  159, 
16  S.  E.,  564. 

2  Gillette  v.  Tucker,  67  O.  S.,  106. 

3  Tomer  v.  Aiken,  126  Iowa,  114. 

4  Barbour  v.  Martin,  62  Me.,  536. 
8  Mohr  v,  Williams,  98  Minn.,  494. 


OPERATION  WITHOUT  PATIENTS  CONSENT      KM 

As  was  said  in  an  Illinois  case:  "Except  in  cases 
where  the  consent  of  the  patient  is  expressed,  or  is 
implied  by  circumstances  and  occasions  other  than 
a  mere  general  retainer  for  medical  examination  and 
treatment,  and  except,  also,  where  there  is  a  superior 
authority  which  can  legally  and  rightfully  dispose  of 
the  person  of  the  patient,  and  which  gives  consent, 
a  surgeon  has  no  right  to  violate  the  person  of  the 
patient  by  a  serious  major  operation,  or  one  remov- 
ing an  important  part  of  the  body."1 

The  party  who  allows  a  surgical  operation  to  be 
performed  is  presumed  to  have  employed  the  surgery 
for  that  particular  purpose.2  Thus  it  has  been  held 
that  the  vaccination  of  a  passenger  by  a  ship's  surgeon 
will  not  constitute  an  assault  if  the  passenger's  behavior 
indicates  consent,  whatever  may  be  his  unexpressed 
feelings  on  the  subject.3  An  operation  upon  the  left 
ear  of  a  patient  without  her  consent,  express  or  implied, 
after  she  had  consented  to  an  operation  upon  the 
right  ear,  is  wrongful  and  unlawful.4 

To  justify  a  surgical  operation  upon  a  married 
woman,  her  consent  and  not  that  of  the  husband  is 
necessary.6 

As  was  said  in  a  Michigan  case:  "It  would  be  a 
cruel  rule  for  a  wife  if  she  could  not  in  her  husband's 
absence  at  least  or  in  his  presence,  if  he  does  not 
himself  provide  for  her,  make  a  binding  contract 
for  any  necessaries,  whether  articles  to  be  purchased 
or  professional  help,  without  becoming  a  public  charge. 
It  is  not  to  be  expected  that  physicians  and  surgeons 

1  Pratt  P.  Davis,  118  111.  App.,  161. 
f  State,  use  of  Janney  v.  Housekeeper,  70  Md.,  162. 
*  O'Brien  t.  Cunard  Steamship  Co.,  Mass. 
4  Mohr  P.  Williams,  98  Minn.,  494. 

»  Pratt  P.  Davis,  118  111.  App.,  161;  State,  use  of  Janney  p.  Housekeeper, 
70  Md.,  162. 


166  MALPRACTICE  OR  NEGLIGENCE 

will  always  feel  bound  to  render  gratuitous  treat- 
ment to  injured  persons,  and  when  the  occasion  is 
pressing  it  would  be  unreasonable  to  delay  until 
an  absent  husband  is  communicated  with  to  learn 
whether  he  consents  or  refuses  to  assume  her  contracts. 
Time  will  not  allow  minute  inquiries,  and  humanity 
will  not  prompt  them."1  The  consent  of  a  man  to  an 
operation  upon  his  insane  wife  upon  taking  her  to  a 
hospital  is  exhausted  when  the  operation  is  performed 
and  she  is  taken  away,  so  as  not  to  justify  another 
operation  if  she  subsequently  returns  to  the  institution. 
And  consent  by  a  man  to  an  operation  upon  his  wife 
for  the  removal  of  her  uterus  and  ovaries  is  not  shown 
by  the  fact  that  after  an  operation  of  a  minor  nature, 
to  which  he  consented,  which  did  not  prove  successful, 
he  complied  with  a  direction  to  bring  his  wife  to  the 
surgeon  again  for  treatment.2 

Whether  the  consent  of  the  parent  or  guardian  of 
an  infant  or  person  non  compos  mentis,  who  is  to 
be  operated  upon,  should  first  be  obtained,  has  not 
as  yet  been  settled.  The  safest  course  is  to  secure 
such  consent  whenever  possible.  Failure  to  obtain 
the  father's  consent  before  administering  an  anes- 
thetic to  a  youth,  aged  seventeen  years,  who  in  com- 
pany with  adult  relatives  has  applied  to  a  surgeon 
to  be  relieved  from  a  small  tumor,  will  not  render 
the  surgeon  liable  to  the  father  for  the  death  of  the 
boy  under  its  influence.3 

An  interesting  case  on  the  consent  of  a  patient  is 
reported  by  Professor  Kinkead  in  his  work  on  Torts, 
a  case  he  refers  to  as  coming  within  his  experience: 
"A  woman  consulted  her  family  physician,  who  advised 
her  that  an  operation  was  necessary,  and  that  she 

1  Carsten  v.  Hauselman,  61  Mich.,  426. 

2  Pratt  v.  Davis,  224  111.,  300. 

3  Baker  v.  Welsh  (Mich.),  108  N.  W.,  94. 


OPERATION  WITHOUT  PATIENT'S  CONSENT      167 

should  go  to  a  hospital  and  have  the  surgeon  of  the 
hospital  treat  her.  The  surgeon,  upon  examination 
in  the  presence  of  physicians  and  nurses,  advised 
that  an  abdominal  operation  was  necessary  to  save 
her  life.  She  submitted  to  the  preparation  without 
protest,  the  operation  was  successful,  she  became  a 
well  woman,  but  finding  that  she  was  without  the 
power  of  procreation,  declaring  that  the  operation 
was  without  her  consent,  brought  suit  against  the 
surgeon,  the  sole  ground  being  the  want  of  consent, 
it  being  the  opinion  of  the  best  surgeons  that  the 
course  pursued  was  the  only  one  to  be  followed  in 
the  treatment  of  such  a  case  surgically.  The  court, 
Williams,  J.,  in  the  charge  correctly  stated  the  law: 
'Did  the  defendants  .  .  .  without  the  consent 
of  the  plaintiff  unlawfully  perform  upon  said  plaintiff 
the  operation  complained  of?  If  you  should  find 
that  said  operation  was  performed,  you  will  then 
determine  whether  or  not  it  was  with  the  consent 
of  the  plaintiff.  She  alleges  that* it  was  without  her 
consent,  and  it  is  incumbent  upon  her  to  prove  this 
charge.  The  consent  of  a  person  submitting  to  an 
operation  is  presumed  unless  she  was  the  victim  of 
a  false  and  fraudulent  misrepresentation  as  to  her 
physical  condition  and  the  necessity  of  the  operation; 
she  is  presumed  to  have  consented  to  the  performing 
of  such  operation.  But  such  false  and  fraudulent 
misrepresentation,  if  relied  upon,  is  a  material  fact 
to  be  established  by  proof  the  same  as  any  other 
material  fact.  .  .  .  The  consent  of  the  patient 
was  necessary  before  the  defendants  .  .  .  could 
lawfully  perform  the  operation  which  it  is  claimed 
was  performed.  If  such  consent  was  not  given,  then 
said  defendants  had  no  right  to  operate  in  the  manner 
complained  of.  But  if  C.  could  not  appreciate  and 


168  MALPRACTICE  OR  NEGLIGENCE 

know  her  condition,  and  if  she  placed  herself  in  the 
care  and  hands  of  said  defendants,  authorizing  them 
to  do  whatever  seemed  reasonable  from  their  knowl- 
edge and  skill  as  physicians  and  surgeons  to  save 
her  life  or  to  protect  her  from  continued  and  serious 
illness,  such  consent  to  the  performing  of  such  opera- 
tion as  was,  in  the  exercise  of  ordinary  surgical  care 
and  skill,  considered  reasonably  necessary,  and  in 
that  event  it  will  not  be  necessary  for  you  to  find 
that  she  gave  express  consent.  ...  If  you  find 
that  the  consent  of  the  plaintiff  was  given  for  an  opera- 
tion which  was  termed  the  scraping  of  the  womb, 
and  that  she  did  not  consent  to  the  operation  which 
is  claimed  to  have  been  performed,  then  the  consent 
to  the  scraping  of  the  womb  cannot  be  interposed  to 
excuse  said  defendants  or  to  justify  them  in  perform- 
ing some  other  different  operation.  In  determining 
whether  or  not  the  consent  of  the  plaintiff  was  given 
for  the  performing  of  the  operation  charged,  you  may 
consider  the  testimony  concerning  the  conversation 
between  the  plaintiff  and  said  defendants,  as  well 
as  the  extent  and  nature  of  the  preparation  made, 
with  the  knowledge  and  understanding  of  the  plaintiff, 
for  the  performing  of  such  operation.  The  consent  of 
relatives  or  friends  of  the  plaintiff  was  not  necessary 
to  authorize  the  defendants  ...  to  perform  said 
operation.'  MI 

The  consent  of  a  patient  to  be  treated  by  a  Christian 
Science  healer  will  preclude  his  holding  him  liable  in 
damages  for  failure  to  effect  a  cure,  although  that 
method  of  treatment  is  illegal  under  the  State  law.2 

1  Cuthreil  v.  Protestant   Hospital   et  al.,  Franklin   County,  Ohio;  Com. 
Pleas  Court,  unreported. 

2  Spead  v.  Tomlison,  73  N.  H.,  46. 


FAILURE  TO  SECURE  CONSENT  FOR  AUTOPSY     100 

10.  LIABILITY  FOR  FAILURE  TO   SECURE  CONSENT  TO 
PERFORM  AUTOPSY 

Time  will  not  permit  and  the  occasion  does  not 
require  us  to  enter  into  any  extended  discussion  of 
the  history  of  the  law,  civil,  common,  or  ecclesiastical, 
of  burial  and  the  disposition  of  the  body  after  death. 
A  quite  full  and  interesting  discussion  of  the  subject 
will  be  found  in  the  report  of  the  referee  in  a  case 
reported  in  4  Bradb.  Sur.,  503.  Upon  the  question 
who  has  the  right  to  the  custody  of  a  dead  body  for 
the  purpose  of  burial,  and  what  remedies  such  person 
has  to  protect  that  right;  the  English  common  law 
authorities  are  not  very  helpful  or  particularly  in 
point,  for  the  reason  that  from  a  very  early  date  in 
that  country  the  ecclesiastical  courts  assumed  exclu- 
sive jurisdiction  of  such  matters.  It  is  easy  to  see 
therefore  why  the  common  law  in  the  early  stages 
refused  to  recognize  the  idea  of  property  in  a  corpse, 
and  treated  it  as  belonging  to  no  one  unless  it  was 
the  church.  The  repudiation  of  the  ecclesiastical 
law  and  of  ecclesiastical  courts  by  the  American 
colonies  left  the  temporal  courts  the  sole  protector 
of  the  dead,  and  of  the  living  in  their  dead.  Inclined 
to  follow  the  precedents  of  the  English  common 
law,  these  courts  were  at  first  slow  to  realize  the 
changed  condition  of  things,  and  the  consequent 
necessity  that  they  should  take  cognizance  of  these 
matters  and  administer  remedies  as  in  other  analogous 
cases.  This  has  been  accomplished  by  a  process  of 
gradual  development,  and  all  courts  now  concur  in 
holding  that  the  right  to  the  possession  of  a  dead 
body  for  the  purpose  of  decent  burial  belongs  to  those 
most  intimately  and  closely  connected  with  the 


170  MALPRACTICE  OR  NEGLIGENCE 

deceased  by  domestic  ties,  and  that  this  right  is  one 
which  the  law  will  recognize  and  protect.  The  general, 
if  not  universal,  doctrine  is  that  this  right  belongs 
to  the  surviving  husband  or  wife  or  to  the  next  of 
kin,  and  while  there  are  few  direct  authorities  upon 
the  subject,  yet  we  think  the  general  tendency  of  the 
courts  is  to  hold  that  in  the  absence  of  any  testa- 
mentary disposition,  the  right  of  the  surviving  wife 
(if  living  with  her  husband  at  the  time  of  his  death) 
is  paramount  to  that  of  next  of  kin.  We  have  there- 
fore no  doubt  that  a  wife  has  the  legal  right  to  the 
custody  of  her  husband's  body  for  the  purpose  of 
preservation,  preparation,  and  burial,  and  can  main- 
tain an  action  for  the  unlawful  mutilation  of  the 
remains.  In  such  an  action  a  recovery  may  be  had 
for  injury  to  the  feelings  and  mental  suffering  result- 
ing directly  and  proximately  from  the  wrongful  mutila- 
tion of  the  body,  although  no  actual  pecuniary  damage 
is  alleged  or  proved.1 

Thus  it  has  been  held  that  a  widow  whose  husband 
having  fallen  through  an  elevator  shaft  was  taken 
to  Bellevue  Hospital,  where  he  died  three  hours  later, 
and  who  begged  those  who  were  in  charge  of  his  body 
not  to  allow  an  autopsy  to  be  performed,  stating  that 
she  would  send  an  undertaker  for  the  body  at  once, 
is  entitled  to  damages  for  the  unauthorized  mutilation 
of  his  body,  notwithstanding  her  request  and  protesta- 
tions.2 

The  father  of  a  child,  who  is  its  natural  guardian, 
has  a  right  in  case  the  child  dies  to  the  possession 
of  the  body  for  burial,  and  may  maintain  any  action 
for  an  unauthorized  autopsy  performed  on  the  dead 
body  of  the  child.3 

1  Larson  v.  Chase,  47  Minn.,  307. 

3  Foley  v.  Phillips,  i  App.  Div.  (N.  Y.),  551. 

3  Burney  v.  Children's  Hospital,  169  Mass.,  57. 


LIABILITY  OF  SURGEONS  IN  MALPRACTICE       171 

A  physician,  however,  who  makes  a  postmortem 
examination  in  the  usual  manner  and  in  pursuance  of 
the  authority  of  the  coroner  is  not  liable  in  an  action 
to  the  family  of  the  deceased  for  the  mutilation  of 
his  body  without  their  consent.  And  doctors  are 
not  liable  for  performing  an  unauthorized  autopsy  on 
a  dead  body  for  the  purpose  of  complying  with  a  rule 
of  the  board  of  health  and  securing  a  burial  permit.1 
For  example:  A  man  in  vigorous  health,  whose  leg 
had  been  crushed  below  the  knee  in  a  railroad  accident, 
and  who  was  carried  to  a  hospital  managed  by  one 
of  the  defendants,  where  he  died  the  next  day,  was 
examined  by  the  defendant,  upon  the  ordering  of  a 
postmortem  examination  by  the  coroner,  without  the 
knowledge  of  the  deceased's  family.  Here  the  physi- 
cian was  not  held  liable,  on  the  ground  that  he  per- 
formed the  postmortem  by  order  of  the  coroner,  and 
did  so  without  wantonly  mutilating  the  corpse.2 
Neither  will  an  action  for  damages  lie  in  favor  of  the 
heirs  of  a  deceased  person  against  a  physician  who 
made  a  postmortem  examination  of  deceased's  body 
under  the  authority  given  him  by  a  city  ordinance, 
which  required  a  physician's  certificate  of  the  cause  of 
death  before  burial  of  the  body  of  a  deceased  person, 
where  the  circumstances  of  death  in  a  certain  case 
are  such  as  to  render  such  an  examination  necessary. 
For  illustration,  where  the  death  was  sudden  and 
occurred  in  a  hack.3 

ii.  LIABILITY  OF  SURGEONS  IN  PARTICULAR  FOR 
MALPRACTICE 

In  the  performance  of  all  operations  upon  the 
human  body  the  surgeon  must  bring  to  the  work 

1  Meyers  ».  Duddenhauser  (Ky.),  90  S.  W.,  1049. 

1  Young  v.  College,  81  Md.,  358. 

*  Cook  ».  Walley  &  Rollins,  I  Colo.  App.,  163,  27  Pac.,  950. 


172  MALPRACTICE  OR  NEGLIGENCE 

that  degree  of  knowledge,  care,  and  skill  necessary 
and  usually  exercised  by  surgeons  of  ordinary  knowl- 
edge, care,  and  skill,  with  respect  to  the  particular 
operation  called  in  question,  in  the  locality  of  the 
residence  of  the  surgeon  whose  conduct  may  be  called 
in  question,  or  in  similar  localities.  In  addition  to 
this,  the  surgeon  must  use  his  best  judgment,  and  use 
precautionary  measures  to  guard  against  an  antici- 
pated injury.  Reasonably  prudent  surgeons  are 
required  to  foresee  such  injuries  as  ordinarily  prudent 
surgeons  may  reasonably  expect  to  result,  and  to 
guard  against  the  same.  It  is  the  very  peril  'of  physical 
injury  which  necessitates  a  code  of  precautions  in 
diagnosis  and  treatment  by  physicians  and  surgeons. 
For  instance,  the  precautions  to  render  an  operation 
aseptic  are  adopted  for  no  other  reason  than  that 
every  physician  anticipates  injury  to  the  patient  as 
probable  in  their  absence.  "It  is  unreasonable  to 
say,"  says  a  Wisconsin  court,  "that  a  physician  may 
improperly  and  negligently  excoriate  the  lining  of  a 
delicate  internal  organ,  and  escape  liability,  by  doubt 
as  to  whether  he,  in  the  exercise  of  reasonable  care, 
should  have  anticipated  injury  to  the  patient  thereby. 
The  relationship  between  such  an  act  of  the  physician 
and  the  physical  condition  of  the  patient  is  so  intimate 
that  he  must  necessarily  anticipate  some  physical 
effect  as  the  result  of  such  operation,  and,  of  course, 
that  such  effect  will  be  bad  if  his  act  be  improper 
or  improperly  done."  This  case,  decided  in  1902,  is 
probably  the  first  case  wherein  there  is  found  a  declara- 
tion of  the  necessity  of  this  element  of  anticipation 
of  injury  from  professional  negligence  in  medical  treat- 
ment or  surgical  operations.  The  facts  of  the  case 
were  substantially  as  follows:  The  plaintiff,  about 
thirty-five  years  of  age,  having  been  long  a  sufferer 


LIABILITY  OF  SURGEONS  IN  MALPRACTICE      17.; 

from  uterine  trouble,  which,  however,  did  not  incapaci- 
tate her  from  doing  the  ordinary  work  of  a  farmer's 
wife,  went  for  treatment  to  the  defendant,  who  main- 
tained a  sanitarium  for  the  treatment  of  chronic 
diseases  of  various  sorts.  After  a  day  or  two  of  prep- 
aration there  was  performed  on  her  the  operation 
of  curettement  of  the  uterus.  That  the  defendant 
failed  to  anticipate  the  infection  of  other  parts  of 
the  body,  especially  the  ovaries,  as  a  result  of  which 
other  parts  of  the  patient's  body  became  infected,  and 
pus  formed  in  the  right  ovary;  and  that  the  opera- 
tion was  performed  without  ordinary  precautions  to 
render  it  aseptic,  and  to  guard  against  infection  from 
the  outside.1 

Another  similar  case,  decided  in  1907,  arose  from 
the  following  state  of  facts:  A  physician  had  been 
called  to  reduce  a  fracture,  and  knowing  that  spring 
water  had  for  some  hours  been  applied  to  the  limb 
after  its  injury,  bandaged  it  too  tightly.  In  applying 
the  law  to  this  state  of  facts  the  court  says:  "As 
to  the  germs  or  microbes  causing  the  mortification, 
it  was  only  a  possibility,  but  even  if  caused  in  this 
way  it  would  not  of  itself  have  relieved  appellant 
[the  physician]  from  responsibility.  He  was  informed 
when  appellee  received  her  injury  that  the  applica- 
tions of  this  cloth  saturated  with  cold  spring  water 
had  been  made,  and  he  should  have  used  reasonable 
care  and  skill  to  have  ascertained  whether  her  arm 
was  infected  or  not,  and  if  so,  treated  her  for  this 
infection,  and  if  he  failed  in  this  he  is  responsible."1 
A  physician  has  been  held  guilty  of  malpractice  where 
he  has  been  called  in  to  treat  a  woman,  aged  sixty- 
one  years,  who  fell  in  November  and  fractured  a 

1  Allen  v.  Voje  (Wis.),  89  N.  W.,  924. 

1  Baute  P.  Haynes,  31  Ky.  L.  Rep..  876,  104  S.  W.,  272. 


174  MALPRACTICE  OR  NEGLIGENCE 

femur,  and  he  takes  her  to  his  sanatorium,  but  does 
not  operate  on  the  broken  hip,  merely  keeping  the 
leg  in  position  by  sand-bags  and  afterward  by  a  plaster 
cast  and  extension.  Although  he  set  up  as  the  defence 
that  at  the  time  of  the  accident,  and  afterward,  the 
patient  was  suffering  from  tuberculosis,  and  that  her 
temperature  rose  to  a  dangerous  point,  and  that  it 
was  not  the  proper  treatment  to  perform  a  surgical 
operation  on  her  at  that  time.1  And  physicians  called 
to  set  the  broken  limb  of  a  nine-year-old  boy  are 
negligent  and  guilty  of  malpractice  where  they  bandage 
the  leg  so  tightly  as  to  retard  or  stop  the  circulation 
of  the  blood,  thereby  causing  gangrene  to  set  in,  and 
necessitating  the  amputation  of  the  leg.2  "But  if  a 
surgeon,  when  called,  advises  a  patient  who  is  of 
mature  years  and  of  sound  mind  that  the  operation  is 
unnecessary  and  improper — in  short,  advises  against 
the  performance — and  the  patient  still  insists  upon 
the  performance  of  the  operation,  in  compliance  with 
which  the  surgeon  performs  it,  we  do  not  see  upon 
what  principle  the  surgeon  can  be  held  responsible 
to  the  patient  for  damages,  on  the  ground  that  the 
operation  was  improper  and  injurious.  In  such 
cases  the  patient  relies  upon  his  own  judgment,  and 
not  upon  that  of  the  surgeon,  as  to  the  propriety  of 
the  operation ;  and  he  cannot  complain  of  an  operation 
performed  at  his  own  instance  and  upon  his  own 
judgment  and  not  upon  that  of  the  surgeon."3  A 
physician  cannot  be  charged  with  the  loss  of  a  foot 
by  amputation  following  a  Pott's  fracture  and  treat- 
ment by  him  as  a  physician,  in  which  a  plaster  cast 
was  used  to  set  the  broken  bone,  where  the  opinions 

1  Miller  v.  Leib,  109  Md.,  414. 

2  Jamison  v.  Hawkins,  13  Pa.  Super.  Ct.,  372. 

3  Gramm  v.  Boener,  56  Ind.,  497. 


LIABILITY  OF  SURGEONS  IN  MALPRACTICE        175 

of  expert  witnesses  as  to  the  cause  of  the  amputation 
did  not  support  the  contention  that  the  result  more 
probably  came  from  the  method  of  treatment  than 
from  the  injury.1  A  physician  is  liable  for  leaving  a 
tight  bandage  upon  a  broken  arm  six  weeks  without 
removal,  causing  formation  of  ulcers  and  gangrene.2 
Physicians  who  treated  a  patient  for  a  fracture 
of  the  bone  of  the  arm  about  an  inch  above  the  wrist 
by  applying  splints  to  the  arm  to  hold  the  broken 
bone  in  place  have  been  held  not  to  be  liable  in  a 
malpractice  suit,  where  two  black  spots  appeared 
on  the  surface  of  the  wrist  when  the  splints  were 
removed,  and  which  subsequently  developed  into 
ulcers  and  resulted  in  a  permanent  injury  to  the 
patient's  arm.  It  appearing  that  the  patient,  aged 
twenty-three  years,  fell  on  the  sidewalk  and  fractured 
her  arm;  that  she  went  to  the  office  of  the  defendant, 
Carman,  who  was  not  in,  but  was  referred  by  some- 
body in  the  office  to  the  other  defendant,  who  set 
the  fracture  and  applied  splints;  that  the  next  morn- 
ing both  defendants  saw  the  patient  at  her  residence, 
took  off  the  splints,  examined  the  arm,  and  put  on 
other  splints,  placing  under  the  splints  small  pads 
of  cotton  to  keep  the  broken  bones  in  place;  that 
the  defendant,  Carman,  saw  the  patient  again  on  the 
three  succeeding  days;  that  on  the  fifth  day  after 
the  accident  he  removed  the  splints  and  found  a 
tendency  at  the  ends  of  the  bones  to  tilt  up;  that  he 
replaced  the  splints,  with  the  pads  of  cotton,  as  he 
thought  tight  enough  to  hold  the  bones  in  place  so 
that  there  would  be  a  good  union;  that  three  days 
thereafter  the  defendant,  Carman,  saw  the  patient, 
removed  the  bandages,  but  did  not  remove  the  splints. 

1  Farrell  v.  Haze,  157  Mich.,  374. 

*  Mitchell  v.  Hindman,  47  111.  App.,  431,  affirmed,  150  111.,  538. 


176  MALPRACTICE  OR  NEGLIGENCE 

There  was  no  evidence  that  at  that  time  there  was 
any  mark  on  the  wrist,  but  the  patient  complained 
of  pain,  and  the  hand  was  swollen  and  discolored; 
that  the  plaintiff  called  at  his  office  about  two  weeks 
after  the  removal  of  the  bandages,  when  the  defendant, 
Carman,  had  been  taken  ill;  that  then  he  made  no 
further  examination,  but  referred  the  patient  to  the 
other  defendant,  telling  the  patient  that  he  was  going 
away;  that  he  was  confined  to  his  bed  with  illness  for 
three  weeks,  when  he  left  town  and  did  not  return  until 
ten  days  thereafter;  Dr.  Cooke,  the  other  defendant, 
treated  the  arm  for  some  time  during  Dr.  Carman's 
absence,  and  then  referred  the  patient  to  another 
physician,  who  was  not  in.  The  patient  subsequently 
called  on  another  physician,  who  treated  her  for  a 
year  and  a  half,  and  the  result  was  that  the  wrist- 
joint  was  stiff,  the  movement  of  thumb  and  fingers 
much  impaired,  with  a  loss  of  sensation,  and  that  this 
condition  will  be  permanent.  The  court  in  deciding 
that  the  defendants  were  not  guilty  of  malpractice 
said:  "The  evidence  is  undisputed  that  he  was  ill 
and  absent  and  did  not  again  see  the  patient,  and  so 
far  as  appears,  he  had  no  further  charge  of  the  case. 
"There  is  no  evidence  to  show  that  up  to  the  time 
the  physician  was  taken  sick  he  was  guilty  of  any 
want  of  reasonable  care  of  or  attention  to  the  plaintiff's 
case.  There  is  nothing  to  show  that  his  visits  were 
not  as  frequent  as  the  situation  required.  ...  I 
think  the  evidence  is  undisputed  that  up  to  the 
time  the  patient  was  taken  sick  and  turned  the 
case  over  to  the  other  defendant  his  treatment  was 
just  what  is  here  described  by  the  patient's  expert 
'as  good  surgery  by  good  surgeons.''  He  adjusted 
the  splints  with  the  amount  of  pressure  that  he  con- 
sidered necessary  to  hold  the  broken  bone  in  place. 


LIABILITY  OF  SURGEONS  IN  MALPRACTICE        177 

The  result  was  "a  splendid  union."  There  is  nothing 
to  show  that  if  there  had  been  less  pressure  there 
would  not  have  been  a  faulty  union  or  that  there  was 
more  pressure  applied  than  was  necessary  to  hold 
the  broken  bone  in  place.  That  was  a  matter  which 
depended  upon  the  judgment  of  the  physician.  That 
the  splints  were  not  removed  sooner  was  not  the 
fault  of  Dr.  Carman,  and  there  is  nothing  to  show 
that  these  black  spots,  which  afterward  developed  into 
ulcers,  had  appeared  when  the  appellant  ceased  to 
attend  the  plaintiff.  For  what  happened  afterward 
he  was  not  responsible.1 

Failure  to  Remove  Sponges. — It  is  negligence  on  the 
part  of  an  operating  surgeon  to  fail  to  remove  all 
the  sponges  from  the  body  of  the  patient  upon  whom 
he  performs  an  operation,  without  regard  to  what 
system  he  adopts  to  insure  their  safe  removal.  He  is 
the  responsible  person  and  must  adopt  such  a  method 
of  counting  as  will  insure  their  removal.2  As  was 
said  in  a  supreme  court  decision  in  Georgia:  "We 
must  admit  that  we  are  unable  to  apprehend  any 
clear  distinction  between  the  duty  of  the  surgeon  at 
the  different  stages  of  what  for  want  of  a  better  term 
we  call  the  operation.  It  seems  to  us  that  the  opera- 
tion begins  when  the  opening  is  made  into  the  body 
and  ends  when  this  opening  has  been  closed  in  a  proper 
way  after  all  appliances  necessary  to  the  successful 
operation  have  been  removed  from  the  body.  From 
the  time  the  surgeon  opens  with  his  knife  the  body  of 
his  patient  until  he  closes  in  a  proper  way  the  wound 
thus  made  the  law  imposes  upon  him  the  duty  of 
exercising  not  only  due  care  but  due  skill  as  well. 

1  MacKenziep.  Carman,  103  App.  Div.  (N.  Y.),  246. 

1  Harris  v.  Fall,  177  Fed.,  79;  Akridge  P.  Noble,  114  Ga.,  949;  41  S.  E.,  78; 
Reynolds  p.  Smith  (la.),  127  N.  W.,  192;  Gillette  P.  Tucker,  67  Ohio  St.,  106. 
12 


178  MALPRACTICE  OR  NEGLIGENCE 

During  the  entire  time  he  must  not  only  know  what 
to  do,  but  he  must  do  it  in  a  careful  and  skilful 
manner."1  In  the  Georgia  case  the  surgeon  who 
performed  the  operation  was  assisted  by  nurses  and 
hospital  attendants,  and  the  gist  of  the  case  was 
that  a  small  sponge  or  gauze  pad  was  left  in  the  abdo- 
men. The  court  instructed  the  jury  that  surgeons 
must  use  ordinary  care  and  skill  in  making  the  incision, 
in  removing  parts  of  the  body,  in  closing  up  the  inci- 
sion, and  due  care  in  the  use  and  handling  of  sponges 
or  pads.  The  appellate  court,  speaking  with  refer- 
ence to  this,  says  that  "it  may  seem  at  first  blush 
that  if  the  surgeon  put  the  sponges  inside  of  a  patient's 
body,  care  would  require  him  to  take  them  all  out. 
But  when  we  remember  that  abdominal  surgery  as 
now  practised  is  largely  a  matter  of  a  few  years' 
growth,  that  until  quite  a  recent  period  it  was  con- 
sidered that  an  incision  or  wound  which  penetrated 
the  abdominal  cavity  was  certainly  fatal,  and  that 
now  such  operations  are  very  frequently  performed; 
that  the  surgeon  must  make  a  small  incision,  not 
over  a  few  inches  in  length,  must  insert  and  properly 
place  a  number  of  small  sponges  or  gauze  pads,  some- 
times as  many  as  a  dozen,  must  partly  by  sight  and 
partly  by  feeling  reach  the  seat  of  the  trouble  and 
cut  away  the  necessary  parts,  must  tie  up  the  loose 
ends,  remove  the  sponges,  and  close  and  sew  up  the 
opening,  arranging  for  proper  drainage,  and  all  this 
with  the  utmost  promptness,  for  sometimes  a  slight 
delay  may  mean  death,  circumstances  and  surround- 
ings must  be  considered  in  measuring  duty.  Some 
of  the  witnesses  in  this  case  testified  that  with  the 
surgeon's  mind  and  attention  riveted  upon  the  delicate 
and  dangerous  work  before  him  it  was  very  difficult, 

1  Akridge  v.  Noble,  114  Ga.,  949. 


LIABILITY  OF  SURGEONS  IN  MALPRACTICE        179 

if  not  impossible,  to  keep  in  his  memory  the  exact 
number  and  placing  of  these  sponges,  that  he  needs 
rely  somewhat  for  the  count  upon  another,  that  he 
exercised  such  care  and  skill  as  he  could  in  finding 
the  sponges,  and  then  had  the  operating  nurse  to  aid 
him  by  keeping  count  of  them;  and  one  or  more  said 
that  if  the  surgeon  should  stop  at  the  critical  moment 
to  count  the  sponges  before  closing  the  wound  the 
patient  might  die.  This  system  may  be  imperfect. 
What  system  is  not?  But  certainly  it  would  never  do 
to  turn  juries  loose  to  fix  some  arbitrary  standard- 
each  jury  for  itself — of  how  abdominal  surgery  ought 
to  be  performed,  regardless  of  how  the  surgeons  them- 
selves had  found  it  safest  and  best  to  do;  nor,  which 
would  amount  to  the  same  thing,  to  say  whether  a 
method  of  performing  an  operation,  even  if  universally 
adopted  by  the  most  skilful  surgeons,  seems  reason- 
able to  the  minds  of  the  jurors  or  not.  This  is  specially 
true  when  the  practice  of  surgery  is  permitted  only 
to  those  who  have  studied  the  recognized  methods, 
have  had  certain  training  and  have  been  found  to  be 
sufficiently  proficient,  and  have  been  licensed.  If  the 
practice  of  surgery  were  thrown  upen  to  everybody, 
to  act  on  his  general  judgment,  without  skill  or  train- 
ing perhaps  the  rule  might  be  different.  The  average 
juror  might,  in  such  a  case,  be  able  to  judge  of  the 
mode  of  performing  operations  as  well  as  the  prac- 
titioner of  whom  no  training,  skill,  or  knowledge  were 
required.  If  all  surgeons  had  perfect  reason  and 
perfect  skill  there  should  be  no  failures.  Medical 
and  surgical  science  must  advance  gradually.  It 
has  its  errors  and  its  failings.  But  it  would  hardly 
do  for  every  doctor  who  gives  a  prescription,  or  for 
every  surgeon  who  performs  an  operation,  to  do  so 
at  the  risk  that  if  the  result  is  not  good  a  jury  may 


180  MALPRACTICE  OR  NEGLIGENCE 

mulct  him  in  damages,  if  they  should  think  the  method 
of  treatment  or  of  conduct  was  unreasonable,  although 
it  was  the  universal  method."  The  law  laid  down  by 
the  supreme  court  (the  reviewing  court),  however, 
is  that  the  law  requires  of  the  surgeon  that  he  must 
exercise  care  not  only  in  placing  the  sponges,  but  also 
in  removing  the  same,  because  their  removal  is  a 
part  of  the  operation.1 

Another  case  of  this  character  arose  in  Kentucky. 
Here  the  surgeon  after  performing  an  operation 
left  in  the  patient's  abdomen  a  sponge,  which  caused 
the  intestines  to  ulcerate,  creating  a  fistula  which 
emitted  fecal  matter  and  noxious  gases,  to  the  serious 
impairment  of  the  plaintiff's  health.  In  this  case 
physicians  testified  that  the  best  surgeons  sometimes 
left  a  sponge  in  the  bodies  of  their  patients  in  perform- 
ing similar  operations,  but  the  court  held  that  the 
question  whether  the  physician  exercised  proper  care 
was  still  for  the  jury,  since  because  all  men  are  at 
times  careless  does  not  relieve  one  from  the  legal  con- 
consequences  of  his  careless  act.2 

A  United  States  court  has  held  the  evidence  in  an 
action  against  a  surgeon  for  negligence  in  performing 
an  operation  for  appendicitis  sufficient  to  warrant 
the  submission  of  the  case  to  the  jury,  where  the 
evidence  in  the  record  is  such  that  the  jury  would 
be  fully  justified  in  finding  the  following  facts:  "On 
March  30,  1907,  at  Keokuk,  Iowa,  R—  -  [the  surgeon] 
for  a  consideration  agreed  upon,  at  the  request  of 
Johnson  [the  patient],  performed  upon  the  latter 
an  operation  for  appendicitis.  When  R—  -  opened 
the  abdomen  he  found  extensive  adhesions  caused  by 
frequent  recurrences  of  the  attacks  of  appendicitis. 

1  Akridge  v.  Noble,  114  Ga.,  950. 

2  Samuels  v,  Willis,  133  Ky.,  459. 


LIABILITY  Of  SUti&tiOtfS  LV  MALPRACTICE        181 

He  immediately  placed  pads  of  gauze  in  the  opening 
to  wall  off  the  infected  area.  The  appendix  was  then 
brought  up,  the  cecum  with  it,  and  as  the  appendix 
was  brought  up  the  sac  ruptured,  and  R—  -  called 
to  his  assistant  to  get  a  pad  quickly.  The  assistant 
got  the  pad  and  R—  -  called  for  another.  Another  pad 
was  gotten  and  placed  m  the  body.  R—  -  did  not 
remember  how  many  pads  he  put  into  the  abdomen. 
Johnson's  case  is  one  known  to  surgery  as  a  pus  case. 
When  R—  -  had  finished  the  operation  the  sponges  or 
pads  of  gauze  that  were  removed  from  Johnson  were 
dropped  into  a  tub.  At  the  time  of  the  operation 
a  stab  drain  was  put  in  so  as  to  give  a  direct  outlet 
from  the  cavity.  About  two  weeks  after  the  operation, 
while  Johnson  was  still  being  treated  by  R—  — ,  a  lump 
formed  at  the  lower  end  of  the  main  incision,  and 
kept  getting  larger  until  it  was  about  the  size  of  a 
hen's  egg.  R—  -  was  informed  of  the  lump,  and  upon 
examination  decided  that  it  was  an  abscess.  The 
lump  or  abscess  was  opened  by  R—  -  and  blood  and 
pus  came  therefrom.  R—  -  mopped  out  the  blood 
and  pus,  ran  the  handle  of  his  knife  into  the  opening, 
probed  open  the  stab  wound,  and  placed  a  tube  in 
the  abscess  wound.  Johnson  remained  at  the  hospital 
until  May  2,  1907.  When  Johnson  left  the  hospital 
at  Keokuk  he  went  home  to  Lockridge,  Iowa,  and 
was  there  cared  for  by  one  Dr.  M—  — ,  who  examined 
his  wounds  and  found  that  the  abscess  wound  extended 
down  into  the  abdominal  cavity.  Pursuant  to  instruc- 
tions contained  in  a  letter  which  Johnson  brought  from 

Dr.  R ,  Dr.  M—     -  each  day  treated  the  abscess 

wound  and  the  stab  wound  with  pieces  of  gauze,  one- 
fourth  of  an  inch  wide,  and  four  or  five  inches  in  length. 
Sometimes  the  pieces  of  gauze  were  eight  or  ten  inches 
long,  but  narrow.  The  discharge  from  the  abscess 


182  MALPRACTICE  OR  NEGLIGENCE 

wound  and  stab  increased  until  about  four  weeks 
after  Johnson  went  home,  when  Dr.  M—  -  called 
Dr.  R —  -  over  the  telephone  and  told  him  that  the 
wounds  were  discharging  worse  than  when  Johnson 
came  home,  and  asked  for  advice.  R—  -  told  him  to 
keep  the  drain  in  and  Johnson  would  get  along  all, 
right.  M—  -  did  so,  but  the  discharge  kept  getting 
worse,  and  on  June  I,  1907,  M—  -  called  R—  -  over 
the  telephone  and  told  him  that  Johnson's  condition 
was  getting  worse,  and  that  there  certainly  must  be 
something  wrong.  About  July  I,  1907,  Johnson 
became  deathly  sick  and  began  vomiting.  The  odor 
from  the  abscess  wound  was  something  awful.  It 
was  getting  rotten.  Johnson  went  five  days  without 
a  passage  of  the  bowels.  Gas  began  to  come  out  of 
the  opening,  and  about  July  3,  1907,  fecal  matter 
began  issuing  out.  Sharp,  excruciating  pains  came 
from  the  region  of  the  bowels  and  a  dull,  stupid  feel- 
ing over  all.  The  fecal  matter  kept  coming  out  of 
the  drainage  places  and  soiled  his  clothing  and  dress- 
ings. Dr.  M—  -  telephoned  a  Dr.  C-  — ,  of  Fairfield, 
a  short  distance  from  Lockridge,  to  come  over  at 
once,  that  something  had  to  be  done.  Johnson's 
temperature  was  then  103°,  his  pulse  120;  he  was 
vomiting  badly,  and  was  bloated  on  his  right  side.  On 
July  7,  1907,  Dr.  C—  — ,  assisted  by  Dr.  M—  — ,  opened 
the  abdominal  cavity  of  Johnson  by  cutting  down 
so  that  the  end  of  the  original  incision  that  was  made 
united  with  the  lower  end  of  the  original  incision 
made  by  R —  — .  C-  -  introduced  his  finger  and  could 
feel  gauze.  He  then  put  in  his  forceps  and  pulled  out 
the  gauze  in  question.  When  the  gauze  came  from  the 
abdomen,  two  and  one-half  to  three  inches  had  pene- 
trated the  ascending  colon.  When  the  gauze  was  re- 
moved a  pint  of  fecal  matter  came  out  with  it,  and 


LIABILITY  OF  SURGEONS  IN  MALPRACTICE        ls:5 

Dr.  C-  -  introduced  his  fingers  into  the  hole  left  by 
the  gauze  in  the  colon.  On  January  i,  1908,  the  wound 
had  healed,  and  Johnson  for  the  first  time  was  able  to 
have  a  natural  movement  of  the  bowels.  It  was  stated 
that  the  size  of  the  piece  of  gauze  taken  from  Johnson 
was  9^  inches  by  \\]/2  inches;  that  the  pads  used 
at  the  time  of  the  operation  by  Dr.  R—  -  were  from 
8  to  10  inches  square;  that  with  free  open  drainage 
such  as  existed  in  this  case  the  gauze  could  have 
remained  in  the  abdominal  cavity  without  any  further 
disturbance  than  did  actually  occur;  that  the  gauze 
pad  had  been  in  the  abdominal  cavity  from  ninety 
to  one  hundred  days;  that  after  Johnson  came  to  Dr. 
M—  -  there  never  was  at  any  time  prior  to  the  opera- 
tion by  Dr.  C-  -  an  opening  in  Johnson's  abdomen 
large  enough  to  have  permitted  the  introduction  of 
the  pad  of  gauze  removed  therefrom ;  that  the  presence 
of  the  gauze  in  Johnson's  abdominal  cavity  was  the 
cause  of  illness  subsequent  to  the  operation  for  appen- 
dicitis. There  was  evidence  tending  to  show  that  all 
of  the  pads  of  gauze  that  were  placed  in  the  abdominal 
cavity  of  Johnson  at  the  time  of  the  operation  for 
appendicitis  were  removed,  but  no  witness  had  any 
actual  knowledge  as  to  whether  they  were  or  not. 
Dr.  R—  -  testified  himself  that  he  did  not  know  how 
many  pads  were  placed  in  the  abdominal  cavity,  and 
the  nurses  who  seemed  to  have  charge  of  furnishing 
the  pad  or  sponges  at  the  hospital  could  only  testify 
that  the  pads  were  removed  by  reason  of  the  fact 
that  they  were  always  removed  in  every  case.  No 
witness  had  a  distinct  recollection  of  what  was 
actually  done  in  this  particular  case  with  reference 
to  removing  the  gauze  pads."1 

1  Ruth  v.  Johnson,  172  Fed.,  191. 


184  MALPRACTICE  OR  NEGLIGENCE 


12.  MALPRACTICE  IN  VACCINATION 

In  an  action  against  a  physician  and  surgeon  for 
malpractice  in  his  profession  it  was  generally  averred 
that  the  defendant,  in  consideration  of  being  paid 
for  his  skill  and  labor  therein,  undertook  to  inoculate 
the  plaintiff  with  the  kine  pock,  in  a  proper  and  skilful 
manner,  but  in  the  performance  of  his  duty  he  so 
unskilfully  treated  her  that  he  cut  a  tendon  in  her 
arm,  to  her  injury,  etc.  The  defendant  prayed  the 
court  to  charge  the  jury  that  unless  the  plaintiff 
had  proved  the  defendant  guilty  of  great  and  gross 
negligence  in  vaccinating  the  plaintiff  she  could  not 
recover.  The  court  told  the  jury  on  this  point  that 
if  there  was  either  carelessness  or  a  want  of  ordinary 
diligence,  care,  and  skill  then  the  plaintiff  was  entitled 
to  recover.  The  principle  laid  down  by  the  court 
below  is  entirely  correct.  "The  case  was  put  to  the 
jury  as  favorably  for  the  defendant  as  the  law  would 
justify.  If  in  the  performance  of  the  operation  there 
was  a  want  of  ordinary  diligence,  care,  and  skill,  or 
if  there  was  carelessness,  then  he  was  liable."1 


13.  LIABILITY  FOR  COMMUNICATING  CONTAGIOUS 
DISEASES   TO   PATIENTS 

A  physician  who  communicates  to  his  patient 
an  infectious  disease  is  responsible  in  damage  for  the 
suffering,  loss  of  time,  and  danger  to  which  the  patient 
may  be  subjected.2  And  a  surgeon  is  liable  in  damages 
where  he  directs  his  patient's  wife  to  assist  in  dressing 
a  wound,  knowing  that  there  was  danger  of  infection, 

1  Landon  v.  Humphrey,  9  Conn.,  209. 

2  Piper  v.  Menifee,  128.  Mon.  (Ky.),  465. 


LIABILITY  OF  PHYSICIAN  POR  INJURIES        l8o 

but  negligently  assuring  her  that  there  was  no  such 
danger,  and  she  relies  on  his  advice  and  becomes 
infected  with  poison.1 


14.  LIABILITY    OF   PHYSICIAN    FOR   INJURIES    FROM 
ELECTRICAL  OR  X-RAY  TREATMENT 

The  rule  governing  the  liability  for  injuries  resulting 
from  the  use  of  the  jc-ray  is  the  same  as  in  other 
actions  for  malpractice.  The  physicians  not  being 
required  to  exercise  any  greater  degree  of  care  and 
skill  than  is  usually  exercised  by  physicians  or  surgeons 
in  good  standing.2  Nor  is  the  physician  an  insurer 
of  the  success  of  treatment  by  the  .r-ray,  or  that  it 
will  not  be  attended  by  unexpected  results;  but  he 
is  only  required  to  have  the  necessary  learning  and 
experience  to  give  the  treatment  in  a  careful  and 
prudent  manner.3  It  has  been  held  in  one  State  that 
the  fact  that  a  patient  was  burned  by  an  re-ray  is 
itself  evidence  that  the  treatment  was  improper;4 
and  in  another,  that  a  jury  is  justified  in  concluding 
that  the  use  of  the  x-ray  by  one  who  has  little  knowl- 
edge of  the  consequences  is  negligence  per  se,  where 
some  of  the  testimony  tends  to  show  that  the  physi- 
cians in  the  community  are  ignorant  of  the  effect  of 
x-ray  exposures.6  But  a  different  result  was  reached 
in  another  jurisdiction  where  it  was  held  that  this 
fact  was  not  evidence  of  negligence,  and  did  not  throw 
the  burden  on  the  defendant  of  showing  that  the 
injury  was  not  caused  by  his  negligence.6 

1  Edwards  p.  Lamb,  69  N.  H.,  599,  45  Atl.,  480. 

*  Shelly  P.  Spohn,  Cir.  Ct.  Ind.;  Henslin  v.  Wheaton,  91  Minn.,  219;  Martin 
p.  Courtney,  87  Minn.,  197;  Gere  v.  Brockman,  138  Mo.  App.,  231. 

*  Geres.  Brockman,  138  Mo.  App.,  231. 
4  Shockley  v.  Tucker,  127  la.,  456. 

6  Sauers  v.  Smits,  49  Wash.,  557. 

*  Sweeney  P.  Erving,  38  Wash.  L.  Rep.,  295. 


186  MALPRACTICE  OR  NEGLIGENCE 

It  has  been  held  that  a  physician  who  after  placing 
a  patient  on  an  insulated  platform  puts  a  conical 
cap  above  and  in  front  of  the  patient's  head,  through 
which  static  electricity  is  discharged,  and  leaves  the 
room  for  eight  to  ten  minutes,  during  which  no  attend- 
ant is  present,  is  guilty  of  actionable  negligence  render- 
ing him  liable  for  the  burning  of  the  patient's  head 
by  the  electricity  during  such  absence  from  the  room.1 
And  a  patient  who  is  burned  by  x-ray  light  is  not 
precluded  from  recovery  for  her  injury  because  she 
quits  his  treatment  before  she  should  have  done  so, 
and  before  he  wished  her  to,  or  by  the  fact  that  she 
neglected  to  follow  his  instructions  as  to  the  care  of 
the  part  affected.2 

In  an  action  against  a  physician  for  malpractice 
in  the  treatment  of  a  patient's  hand  by  the  applica- 
tion of  x-rays  a  verdict  in  favor  of  the  plaintiff  has 
been  held  to  be  justifiable  where  the  evidence  showed 
that  "defendant  was  a  physician  and  surgeon  and 
was  practising  his  profession  in  the  city  of  St.  Louis 
from  the  time  he  graduated  in  1897.  The  plaintiff 
was  a  machinist.  At  the  time  plaintiff  first  went  to 
see  the  defendant  concerning  his  injury  he  was  twenty- 
eight  years  of  age,  and  married.  While  working  at 
his  trade  he  sustained  a  supposed  scratch  in  the  palm 
of  his  hand.  Later  a  red  spot,  about  the  size  of  a 
half  dollar,  appeared  in  the  centre  of  the  palm  of  his 
right  hand.  It  is  claimed  by  him  that  this  spot  did 
not  pain  him  nor  inconvenience  him  in  the  perform- 
ance of  his  work.  On  August  10,  1901,  he  went  to 
the  defendant's  office  to  consult  him  about  the  spot 
in  his  hand,  and  he  claims  that  defendant  told  him  he 
had  a  chronic  disease  known  as  dry  tetter  or  eczema, 

1  Frisk  v.  Cannon,  112  Minn.,  438. 

2  Sauers  v.  Smits,  49  Wash.,  557. 


LIABILITY  OF  PHYSICIAN  FOR  INJURIES        187 

and  that  he  could  cure  it.  Plaintiff  claims  that  he 
then  and  there  employed  defendant  to  treat  his  hand 
for  the  ailment,  and  that  the  defendant  commenced 
to  treat  him  by  applying  a  salve  to  the  spot  in  the 
hand,  and  that  at  the  time  plaintiff  employed  defend- 
ant to  treat  his  hand  defendant  persuaded  him  to 
join  the  St.  Louis  Hospital  Ticket  Association,  which 
was  a  hospital  conducted  by  the  defendant.  The 
plaintiff  testified  that  defendant  told  him  the  hospital 
did  not  treat  persons  for  chronic  diseases,  and  that 
he  would  give  him  the  treatments. 

The  plaintiff  claims  that  for  more  than  a  year  the 
defendant  treated  him  with  certain  applications,  but 
no  benefit  was  obtained  therefrom;  that  in  September, 
1902,  defendant  told  him  he  would  have  to  use  the 
x-rays  on  the  hand,  and  that  he  would  charge  him 
$1.00  a  treatment  therefor;  that  at  the  time  arrange- 
ments were  made  for  the  x-ray  treatment  he  was 
told  by  the  defendant  that  it  would  cure  him,  and 
that  it  would  not  interfere  with  his  work;  that  the 
defendant  did  apply  the  treatment  to  his  hand,  and 
told  him  to  hold  the  palm  of  his  hand  about  half  an 
inch  from  the  energized  tube  from  which  the  rays 
emanated;  that  defendant  exposed  his  hand  to  such 
rays  or  currents  nine  times  in  eleven  days,  each  time 
directing  him  to  hold  his  hand  about  half  an  inch  from 
the  said  tube;  and  that  these  exposures  varied  from 
ten  to  thirty-five  minutes.  Plaintiff  claims  that 
after  the  eighth  treatment  he  complained  to  the 
defendant  that  his  hand  was  burning  him  and  paining 
him,  and  afterward  defendant  gave  him  another 
treatment  for  ten  minutes'  duration. 

Plaintiff  further  claims  that  on  different  occasions 
defendant  left  him  with  his  hand  thus  exposed,  and 
went  to  attend  other  business,  and  at  certain  times 


188  MALPRACTICE  OR  NEGLIGENCE 

gave  the  plaintiff  instructions  when  to  turn  off  the 
current;  that  the  hand  became  badly  swollen;  that 
the  defendant  scraped  the  skin  until  he  got  nearly 
all  the  skin  removed  from  the  palm  of  the  hand,  and, 
in  addition  thereto,  that  he  scraped  the  hand  for 
the  purpose  of  removing  the  parts  appeared  to  have 
been  burned  or  cooked  by  the  x-rays;  that  he  suffered 
great  pain  from  the  time  the  x-ray  treatments  were 
applied;  that  he  could  not  sleep  nights,  and  the  de- 
fendant gave  him  laudanum,  but  he  got  no  relief;  that 
these  treatments  of  scraping  and  dressing  the  hand 
continued  until  February  10,  1903,  when  the  treat- 
ments caused  such  pain  and  suffering  that  he  could 
not  stand  it,  and  he  then  left  the  defendant  and  went 
to  another  physician,  who  commenced  treating  the 
hand,  resulting  finally  in  relieving  the  pain  and 
causing  the  hand  to  heal,  but  left  it  in  such  shape  that 
he  now  has  what  the  physicians  call  a  "claw  hand." 
"The  defendant  and  his  witnesses  testified  that 
the  hand  was  exposed  the  number  of  times  claimed  by 
the  plaintiff,  but  there  was  a  protection  placed  over 
all  parts  of  the  hand  except  the  spot  to  be  treated, 
and  that  while  the  treatments  varied  from  ten  to 
thirty  minutes,  the  plaintiff's  hand  was  placed  not 
closer  than  six  inches  to  the  tube,  and  he  was  cautioned 
to  keep  it  at  that  point."1 

15.  LIABILITY  FOR  DECEIT 

The  general  rule  is  that  a  mere  expression  of  an 
opinion  that  a  cure  can  be  effected  is  not  fraud.  The 
reason  most  frequently  given  for  the  rule  is  that  the 
opposite  party  has  no  right  to  rely  on  it,  and  that, 
therefore,  he  cannot  be  misled  by  it.  Another  reason 

1  Hales  v.  Raines  (Mo.),  130  S.  W.,  425. 


LIABILITY  FOR  DECEIT  189 

is  that  there  is  no  adequate  means  of  proving  that 
the  opinion  as.  expressed  was  not  truly  entertained, 
and  it  could  scarcely  be  said  to  be  fraudulent  if  it  was 
an  honest  opinion.  There  are,  however,  well-defined 
exceptions  to  the  rule.  If  the  opinion  is  designedly 
false,  or  advantage  is  taken  of  the  other  party  in  a 
manner  which  is  clearly  oppressive  without  any  negli- 
gence on  the  part  of  the  latter,  there  may  be  fraud, 
although  the  statement  is  only  in  the  form  of  an 
opinion.  Thus  where  a  party  possesses  special  learn- 
ing or  knowledge  on  the  subject  with  respect  to  which 
he  expresses  an  opinion,  a  false  statement  and  repre- 
sentation made  to  one  who  is  ignorant  upon  the 
subject,  where  deception  is  designed  and  injury  follows 
from  reliance  upon  such  an  opinion,  will  support  an 
action  for  deceit.1 

In  the  case  of  Hedin  v.  Minneapolis  Medical  and 
Surgical  Institute,  cited  to  the  general  rule,  Justice 
Collins,  speaking  for  the  court,  said:  'The  doctor, 
specially  trained  in  the  art  of  healing,  having  superior 
learning  and  knowledge,  assured  plaintiff  that  he  could 
be  restored  to  health.  That  the  plaintiff  believed 
him  is  easily  imagined,  for  a  much  stronger  or  more 
learned  man  would  readily  have  believed  the  same 
thing.  The  doctor  with  his  skill  and  ability  should 
be  able  to  approximate  to  the  truth  when  giving  his 
opinion  as  to  what  can  be  done  with  injuries  of  one 
year's  standing,  and  he  should  always  be  able  to  speak 
with  certainty  before  he  undertakes  to  assert  positively 
that  a  cure  can  be  effected.  If  he  cannot  speak  with 
certainty  let  him  express  a  doubt.  If  he  speaks  with- 
out any  knowledge  of  the  truth  or  falsity  of  a  state- 
ment that  he  can  cure,  and  does  not  believe  the  state- 

1  Homer  v.  Perkins,  124  Mass.,  431;  Hedin  r.  Minneapolis  Medical  and 
Surgical  Institute,  62  Minn..  146;  Conlan  v.  Roemer,  52  X.  J.  L.,  53. 


190  MALPRACTICE  OR  NEGLIGENCE 

ment  true  or  if  he  has  no  knowledge  of  the  truth  or 
falsity  of  such  statement,  but  represents  it  as  true 
of  his  own  knowledge,  it  is  to  be  inferred  that  he 
intends  to  deceive.  The  deception  being  designed  in 
either  case,  and  injury  having  followed  from  reliance 
upon  the  statements,  an  action  for  deceit  will  lie." 
To  recover  damages  from  a  Christian  Science 
healer  because  of  deceit  in  stating  that  he  could  and 
would  cure  an  intending  patient,  whom  he  failed  to 
benefit,  plaintiff  must  show  not  only  that  the  state- 
ment was  false,  but  that  it  was  made  with  fraudulent 
intent.  And  the  fact  that  such  healer  did  not  believe 
he  could  induce  God  to  heal  a  person  sick  with  appendi- 
citis when  he  stated  to  her  that  he  could  and  would 
heal  her,  cannot  be  found  by  the  jury  merely  because 
they  believe  that  the  statement  that  a  cure  could  be 
effected  without  material  aid  was  untrue.1 


16.  LIABILITY  FOR   MAKING   WRONGFUL   CERTIFICATE 

OF  INSANITY 

One  of  the  important  duties  a  physician  is  called 
upon  to  perform  is  that  of  testifying  on  the  question 
of  the  commitment  of  an  alleged  lunatic  to  an  asylum. 
The  proceedings  for  such  commitment  are  detailed 
in  the  statutes  of  the  several  States.  It  is  conceded 
that  if  a  certificate  is  correct,  it  is  a  complete  bar  to 
a  civil  action  for  damages.  Likewise  if  physicians 
who  have  certified  to  the  insanity  of  a  person  have 
not  made  the  inquiry  and  examination  which  the 
statute  requires,  or  if  their  evidence  and  certificate 
in  any  respect  or  form  or  substance  is  not  sufficient 
to  justify  a  commitment,  the  municipal  officers  should 
not  commit,  and  if  they  do  it  is  their  fault  and  not 

1  Spead  v.  Tomlinson,  73  N.  H.,  46;  59  Atl.,  376. 


MAKING   WRONGFUL  CERTIFICATE  OF  INSANITY     191 

that  of  the  physicians,  provided  they  have  stated 
facts  and  opinions  truly  and  have  acted  with  due 
professional  care  and  skill.  In  such  an  action  the 
falsehood,  and  not  the  insufficiency  of  the  certificate, 
is  the  ground  of  action  against  the  certifying  physi- 
cians. Without  statutory  provisions  to  that  effect 
there  cannot  be  a  civil  action  for  damages  against  a 
physician  based  upon  the  insufficiency  of  the  methods 
which  he  pursued  in  reaching  and  certifying  a  correct 
conclusion.  Moreover  the  burden  of  proof  is  upon 
the  plaintiff  to  show  that  she  was  sane  at  the  time  the 
certificate  of  insanity  was  given.1  The  author  can  do 
no  better  in  this  connection  than  to  quote  somewhat 
freely  from  the  charge  to  the  jury  made  by  Crompton, 
J.,  in  the  interesting  case  of  Hall  v.  Semple:  'Take 
me  as  saying  to  you  in  point  of  law,"  says  that  able 
judge,  "that  if  a  medical  man  assumes,  under  this 
statute" — referring  to  an  English  statute  similar  to 
our  statutes— "the  duty  of  signing  such  a  certificate, 
without  making  and  by  reason  of  his  not  making  a 
due  and  proper  examination,  which  a  medical  man 
under  such  circumstances  ought  to  make  and  is  called 
on  to  make,  not  in  the  exercise  of  the  extremest  possible 
care,  but  in  the  exercise  of  ordinary  care,  so  that  he 
is  guilty  of  culpable  negligence,  and  damage  ensue, 
then,  that  an  action  will  lie,  although  there  has  been 
no  spiteful  or  improper  motive  and  though  the  certifi- 
cate is  not  false  to  his  knowledge. 

'The  true  ground  of  plaintiff's  complaint  is  the 
negligence  of  the  defendant  and  the  want  of  due  care 
in  the  discharge  of  the  duty  thrown  upon  him,  and 
I  think  if  a  person  assumes  the  duty  of  a  medical  man, 
under  this  statute,  and  signs  a  certificate  of  insanity 
which  is  untrue,  without  making  the  proper  examina- 

1  Pennell  v.  Gumming,  75  Me.,  163. 


192  MALPRACTICE  OR  NEGLIGENCE 

tion  and  inquiries  which  the  circumstances  of  the 
case  would  require  from  a  medical  man  using  proper 
skill  in  such  a  matter,  if  he  states  that  which  is  untrue 
and  damage  ensues  to  the  party  thereby,  he  is  liable 
to  an  action,  and  it  is  to  that  I  desire  to  call  your 
particular  attention.  It  is  not  that  a  medical  man 
is  bound  to  form  a  right  judgment,  so  as  to  be  liable 
to  an  action  if  he  does  not.  There  are  cases  of  insanity 
which  are  very  difficult  to  deal  with  or  to  understand. 
But  what  he  is  required  to  do  is  to  make  an  examina- 
tion and  if  necessary  to  make  such  inquiries  as  may 
be  required.  It  would  be  unjust  if  a  man  were  to  be 
visited  in  cases  of  this  kind;  with  consequences  arising 
from  mere  error  of  judgment  or  mistake  in  fact. 

"There  must  be,  to  make  him  liable,  negligence 
in  the  discharge  of  those  proper  duties  which  it  must 
be  taken  he  has  assumed  in  undertaking  to  sign  the 
certificate  of  insanity,  and  if  you  are  satisfied  that 
there  has  been  negligence,  with  reference  to  these 
matters,  culpable  negligence,  as  I  have  described  it, 
then  he  is  liable.  Now  I  cannot  help  thinking  that  in 
a  matter  of  this  kind,  which  is  not  like  a  mere  pre- 
liminary inquiry  before  a  magistrate,  but  a  proceeding 
upon  which  a  man  is  to  be  at  once  confined  to  imprison- 
ment as  a  lunatic,  very  considerable  care  is  necessary. 
One  can  hardly  say  precisely  what  that  degree  of  care 
may  be.  It  is  said  that  one  may  be  satisfied  with  a 
quicker  examination  than  another.  We,  for  instance, 
would  take  a  long  time,  before  we  should  be  able  to 
form  a  judgment  in  a  matter  of  this  kind.  A  person 
experienced  in  such  matters  might  decide  more  quickly, 
while  an  ordinary  medical  practitioner  might  require 
a  longer  time.  We  take  it  as  clear,  however,  that 
considerable  care  ought  to  be  used."1  The  principles 

1  Hall  v.  Semple,  Foster  and  Finlason's  Reports. 


MAKING  WRONGFUL  CERTIFICATE  OF  INSANITY    193 

here  laid  down  have  been  adopted  by  the  courts  in 
this  country.1  The  United  States  Statutes  provide 
that  "A  physician  who  knowingly  makes  any  false 
certificate  as  to  the  sanity  or  insanity  of  any  person 
shall  upon  conviction  thereof  be  fined  not  more 
than  five  hundred  dollars  or  imprisoned  not  more 
than  three  years  or  both."  In  Massachusetts  "a 
physician  who  shall  unlawfully  or  improperly  conspire 
with  a  person  to  commit  to  an  insane  asylum  or 
hospital  in  this  Commonwealth  a  person  who  is  not 
insane  shall  be  punished  by  fine  or  imprisonment  at 
the  discretion  of  the  court."  Alienists  are  not  liable 
for  malpractice  in  issuing  a  certificate  of  insanity 
where  they  are  guilty  of  nothing  more  than  an  error 
of  judgment.2  Actions  brought  against  physicians 
for  their  alleged  negligence  or  misconduct  in  certify- 
ing to  the  insanity  of  persons,  whom  they  have  been 
appointed  to  examine,  are  governed  in  general  by  the 
same  rules  that  apply  to  actions  for  malpractice. 
Where  a  statute  authorizes  the  commitment  of  a 
patient  to  an  insane  asylum  upon  a  certificate  of  a 
committee  of  physicians  appointed  to  examine  him 
as  to  his  sanity,  a  civil  action  for  damages,  based 
upon  the  insufficiency  of  the  methods  used  by  such 
physicians  in  reaching  and  certifying  their  conclu- 
sions, will  not  lie  against  them  at  common  law.  Such 
an  action  must  be  based  upon  the  falsity  of  the  certifi- 
cate and  not  upon  the  insufficiency  of  the  examina- 
tion. In  such  an  action  the  burden  of  proof  is  upon 
the  plaintiff  in  respect  to  the  averment  and  claim  that 
he  was  then  sane.3 

1  Williams  v.  Le  Bar,  141  Pa.,  149;  Ayers  v.  Russell,  50  Hun.  (N.  Y.),  282; 
Niven  v.  Boland,  177  Mass.,  n. 
1  Warner  v.  Packer,  139  App.  Div.,  207. 
1  Pennell  v.  Cummings,  75  Me.,  163. 

13 


194  MALPRACTICE  OR  NEGLIGENCE 

17.  LIABILITY  OF  SURGEON  FOR  ACTS  OF  ASSISTANTS 

The  contract  of  a  surgeon  undertaking  to  perform 
an  operation  does  not  imply  liability  for  mistakes  in 
care,  dressings,  and  treatments  given  by  the  attendants 
in  a  general  hospital  during  convalescence  after  the 
operation  is  finished.1  Thus  it  has  been  held  that  a 
physician  is  not  liable  for  the  negligence  of  nurses  in 
a  hospital  where  the  patient  is  placed  over  whom  he 
has  no  control,2  and  in  Prerionowsky  v.  Freeman,  4 
Post,  and  F.,  977,  800,  Cockburn,  Ch.  J.,  remarked 
upon  the  practice  (there  proven)  ,of  surgeons  to  leave 
their  patients  in  various  details  to  the  hospital  nurses, 
that  such  practice  was  "indispensable,"  and  the 
operating  surgeon  was  not  liable  for  their  negligence. 
So  these  hospital  attendants,  known  as  "internes" 
(usually  young  physicians),  are  furnished  at  the  general 
hospital  to  attend  to  the  ordinary  work  of  dressing 
and  treating  the  wound  (left  by  the  operation)  on 
the  way  to  recovery;  and  the  mere  undertaking  of 
the  surgeon  to  operate,  under  call  or  engagement 
therefor,  cannot,  as  we  believe,  imply  his  further 
personal  undertaking  for  the  ordinary  details  of  after- 
treatment,  to  make  the  doctrine  of  respondent  superior, 
applicable,  to  charge  him  for  fault  or  negligence  on 
the  part  of  such  hospital  attendants,  neither  known 
nor  discoverable  by  the  surgeon  in  exercise  of  care 
and  skill  throughout  his  engagement.  No  doubt  is 
entertainable,  however,  that  the  professional  under- 
taking in  the  case  at  bar  extended  as  well  to  the 
subsequent  visits,  observations,  and  personal  treat- 
ment in  evidence  with  the  attendant  obligation  for 
the  exercise  of  skill  and  care  therein. 

1  Harris  v.  Fall,  177  Fed.,  79;  Baker  v.  Wentworth,  155  Mass.,  338;  29 
N.  E.,  589;  Reynolds  v.  Smith  (Iowa),  127  N.  W.,  192. 

2  Baker  v.  Wentworth,  155  Mass.,  338. 


UNPROFESSIONAL  MAN  IN  LYING-IN  CHAMBER     195 


18.  LIABILITY  FOR   NEGLIGENCE   OF  PARTNER 

In  case  two  or  more  surgeons  are  associated  together 
in  practice  as  partners  all  are  liable  for  malpractice 
by  any  member  of  the  firm.1  Thus  if  co-partners 
practising  medicine  and  surgery  are  employed  to  set 
a  broken  leg,  and  one  does  his  work  skilfully  and  the 
other  performs  his  duties  negligently  and  unskilfully, 
causing  injury,  the  firm  will  be  liable. 

19.  LIABILITY  FOR  NEGLIGENCE  OF  SUBSTITUTE 

A  physician  or  surgeon  is  not  liable  for  the  negli- 
gence of  another  practitioner  whom  he  recommends 
or  sends  in  his  place  when  he  is  unable  to  attend  the 
patient,  and  whose  services  are  continued  under  an 
independent  contract,  since  no  relation  of  agency  or 
employment  exists  between  the  physicians.2  Thus 
a  surgeon  who  on  being  called  to  treat  a  patient 
informed  him  that  he  would  be  absent  for  two  weeks 
and  that  another  surgeon  named  would  attend  to  his 
cases  in  his  absence,  will  not  be  responsible  for  the 
latter's  negligence  or  want  of  skill  in  treating  the 
patient  during  such  absence  where  there  is  no  busi- 
ness relation  between  the  two.3 

20.  LIABILITY  FOR  TAKING  UNPROFESSIONAL  UN- 
MARRIED MAN  INTO  LYING-IN  CHAMBER 

Where  a  physician  takes  an  unprofessional  unmarried 
man  with  him  to  attend  a  case  of  confinement,  where 

1  Haase  v.  Morton,  138  Iowa,  205;  Hyrne  v.  Erwin,  27  S.  E.,  226;  Whittaker 
v.  Collins,  34  Minn.,  299. 

1  Keller  v.  Lewis,  65  Ark.,  578;  47  S.  W.,  755;  Hitchcock  v.  Burgett,  38 
Mich.,  501 ;  Myers  ».  Holborn,  58  N.  J.  L.,  193;  33  All.,  389. 

»  Keller  v.  Lewis,  65  Ark.,  578. 


196  MALPRACTICE  OR  NEGLIGENCE 

there  is  no  emergency  requiring  the  latter's  presence, 
both  are  liable  in  damages;  and  it  makes  no  difference 
that  the  patient  or  husband  supposed  at  the  time  that 
the  intruder  was  a  medical  man,  and  therefore  sub- 
mitted to  his  presence.1 


21.  LIABILITY  FOR  INJURY  TO   ATTENDANT 

A  physician  may  be  liable  in  damages  for  injuries 
from  poison  to  one  voluntarily  assisting  in  caring  for  a 
wound,  if  knowing  of  infectious  poison  in  the  wound, 
he  assures  the  attendant  that  there  is  no  danger, 
although  he  is  ignorant  of  a  slight  abrasion  on  the 
attendant's  hands,  in  the  absence  of  which  the  danger 
would  not  exist.2 

22.  EFFECT    OF    CONTRIBUTORY    NEGLIGENCE    OF 

PATIENT 

(a)  In  General. — The  law  of  contributory  negligence 
as  applied  to  cases  of  malpractice  is  slightly  different 
in  its  operation  than  that  in  other  cases  of  negligence. 
In  ordinary  cases,  contributory  negligence  of  a  plaintiff 
to  have  a  controlling  effect  must  operate  as  an  efficient 
cause  of  the  injury  complained  of.  It  must  have  a 
casual  connection  with  the  act  complained  of.  In 
actions  of  malpractice,  an  act  of  neglect  on  the  part 
of  the  patient  may  occur  concomitantly  with  the 
acts  of  neglect  on  the  part  of  the  physician,  but  not 
previously  thereto.  It  may  also  occur  subsequent 
to  the  negligence  of  the  physician  or  surgeon.  When- 
ever the  negligence  of  the  patient  occurs  subsequent 
to  the  negligence  of  the  physician  or  surgeon,  and 

1  De  May  v.  Roberts,  46  Mich.,  160. 

2  Edwards  v.  Lamb,  60  N.  H.,  599;  45  Atl.,  480. 


CONTRIBUTORY  NEGLIGENCE  OF  PATIENT       197 

contributes  substantially  to  the  injury  of  which  the 
patient  suffers,  then  it  may  be  shown,  not  strictly  as 
a  defence,  nor  for  the  purpose  of  destroying  his  right, 
but  by  way  of  mitigation  of  damages.1 

In  Ohio2  it  has  been  held  that  if  his  patient  neglects 
to  obey  the  reasonable  instructions  of  the  surgeon 
and  thereby  contributes  to  the  injury  complained  of, 
he  cannot  recover  for  such  injury.  In  Missouri3 
the  rule  in  such  cases  seems  to  be  that  if  the  plaintiff 
substantially  contributes  to  the  injury  by  his  improper 
or  negligent  conduct  he  cannot  recover;  but  if  the 
injury  was  occasioned  by  the  improper  or  negligent 
conduct  of  the  defendant  and  the  plaintiff  did  not 
substantially  contribute  to  produce  it  then  the  latter 
would  be  entitled  to  the  verdict. 

To  entitle  a  patient  to  recover  he  must  not  have 
contributed  to  his  injury  in  any  degree.4 

Neither  can  the  patient  recover  when  by  his  own 
acts  he  has  rendered  it  impossible  to  determine  whether 
the  suffering  and  pain  complained  of  was  caused  by 
his  own  negligence.  For  example,  where  by  his  own 
voluntary  act  he  leaves  the  hospital  before  he  ought 
to  do  so  and  makes  it  impossible  to  tell  whether  or 
not  he  would  have  been  cured  had  he  remained.5 

1  Illinois — Morris  v.  Despain,  104  111.  App.,  452.  Missouri — Sanderson 
v.  Holland,  39  Mo.  App.,  233.  New  York — Du  Bois  v.  Decker,  130  N.  Y., 
325;  29  N.  E.,  313.  North  Carolina — McCracken  v.  Smathers,  122  N.  C., 
799;  29  S.  E.,  354.  Oregon — Beadle  v.  Paine,  46  Oregon,  424;  80  Pac.,  903. 
Vermont — Wilmot  v.  Howard,  39  Vt.,  447.  West  Virginia — Lawson  ».  Cona- 
way,  37  W.  Va.,  159. 

1  Geiselman  v.  Scott,  25  Ohio  St.,  86. 

1  West  v.  Martin,  31  Mo.,  375. 

4  Illinois — Harring  v.  Spicer,  92  111.  App.,  449.  Indiana — Lower  r.  Franks, 
115  Ind.,  334.  Massachusetts — Hibbard  v.  Thompson,  109  Mass.,  286. 
Michigan — Hitchcock  v.  Burgett,  38  Mich.,  501.  Minnesota — Chamberlain 
v.  Porter,  9  Minn.,  260.  Missouri — West  v.  Martin,  31  Mo.,  375.  New  York 
— Becker  v.  Janinski,  27  Abb.  N.  C.,  45.  Ohio — Geiselman  p.  Scott,  25  Ohio 
St.,  86.  Pennsylvania — Reber  v.  Herring,  115  Pa.,  599. 

1  Richards  v.  Willard,  176  Pa.,  181. 


198  MALPRACTICE  OR  NEGLIGENCE 

Or,  "for  instance,  suppose  a  man  fractures  the  bones 
in  his  leg  below  the  knee,  and  calls  a  surgeon  to  treat 
the  injuries,  and  the  surgeon  negligently  fails  to  reduce 
one  of  the  fractures,  but  in  all  other  respects  gives 
proper  treatment,  and  the  patient,  in  disobedience 
to  the  directions  of  the  surgeon,  negligently  removes 
the  bandages  used  as  a  part  of  the  proper  treatment 
by  the  surgeon,  or  is  otherwise  guilty  of  contributory 
negligence,  and  such  combined  negligence  of  the 
surgeon  and  patient  unite  in  producing  a  shortness 
and  stiffness  of  the  leg,  for  which  injuries  an  action 
is  brought  against  the  surgeon — can  the  patient 
recover?  The  patient  is  certainly  not  responsible  in 
such  a  case  for  the  original  negligence  of  the  surgeon 
in  failing  to  properly  reduce  the  fractures,  but  this 
negligence  of  the  surgeon  unites  with  the  subsequent 
contributory  negligence  of  the  patient  in  causing  the 
shortness  and  stiffness  of  the  leg."  Hence  the  patient 
has  no  cause  of  action  against  the  surgeon.1 

(&)  Failure  of  Patient  to  Obey  Instructions. — The 
most  common  form  of  contributory  negligence  is 
where  the  patient  disobeys  the  instructions  given  him 
by  his  physician  or  surgeon,  it  being  the  duty  of  a 
patient  to  co-operate  with  his  physician  and  obey 
all  necessary  instructions.2  So  if  a  surgeon  tells  his 
patient  to  visit  him  again  as  soon  as  he  feels  any  pain, 
and  though  he  felt  pain  for  a  week  he  did  not  return 
according  to  his  instructions,  the  surgeon  is  exonerated 
for  the  resulting  injury.3 

Likewise,  if  a  patient  who  is  directed  by  his  physi- 
cian to  observe  absolute  rest  as  a  part  of  the  treat- 

1  Young  v.  Mason,  8  Ind.  App.,  264;  35  N.  E.,  521. 

2  Jones  v.  Angell,  95  Ind.,  376;  Stover  v.  Bluehill,  51  Me.,  439;  Becker  v. 
Janinski,  27  Abb.  N.  C.,  45;  Geiselman  v.  Scott,  25  Ohio  St.,  86:  McCandless 
v.  McWha,  22  Pa.,  261. 

3  Jones  v.  Angell,  95  Ind.,  376. 


CONTRIBUTORY  NEGLIGENCE  OF  PATIENT     199 

ment  of  an  injured  foot  negligently  fails  to  observe 
such  direction,  or  purposely  disobeys  the  same,  he 
cannot  recover  if  such  disobedience  proximately  con- 
tributes to  the  injury  of  which  he  complains.1  The 
information  given  to  a  patient  concerning  his  malady 
must  be  considered  in  determining  whether  the  patient, 
in  disobeying  the  instructions  of  the  surgeon,  was 
guilty  of  contributory  negligence.2 

(c)  Where    Patient    is    Delirious. — If   a   patient  is 
delirious  and  cannot  be  made  to  understand  the  pro- 
posed  treatment,    the  surgeon  must  co-operate  with 
the  patient's  immediate  family,  and  if  the  latter  refuse 
to  allow  the  treatment  or  operation   the  surgeon  is 
exonerated.3 

(d)  Failure   to   Secure   Assistants. — If  a   physician 
requests    the   employment   of   another   physician    for 
consultation    and    to   assist   in   administration   of  an 
anesthetic,    and    the    patient    refuses    or    neglects    to 
secure  him,  the  physician  will  not  be  liable  for  the 
permanent    injury    resulting    when     such     assistance 
would    have    rendered    the    injury    only    temporary.4 
But  the  injured  person  is  not  bound  to  seek  aid  from 
other  physicians  to  mitigate  the  consequences  of  the 
mistake  of  the  attending  physician.5 

(e)  Burden  of  Proving   Contributory   Negligence.— 
The   burden   of   proving   the   contributory   negligence 
of  a  patient  is  governed  by  the  same  rules  as  apply 
to  other  cases  of  negligence.     The  burden  is  on  the 
plaintiff  to  show   his   freedom    from   negligence   con- 
tributing to  the  result  complained  of.6     The  fact  that 

1  Geiselman  r.  Scott,  25  Ohio  St.,  86. 

•  Ibid. 

1  Littlejohn  v.  Abogart,  95  III.  App.,  605. 
4  Haering  v  Spicer,  92  111.  App.,  449. 

•  Chamberlin  v.  Morgan,  68  Pa.,  168. 

•  Gramm  v.  Boener,  56  Ind.,  497;  Whitesell  ».  Hill,  Iowa,  66;  N.  W.,  894. 


200  MALPRACTICE  OR  NEGLIGENCE 

a  patient  is  guilty  of  contributory  negligence  cannot 
be  shown  by  the  statements  of  one  who  had  no  personal 
knowledge  of  it.1 

23.  LIABILITY  OF  HOSPITALS  FOR  NEGLIGENCE   OF 

SERVANTS 

The  courts  have  made  a  distinction  between  the 
liability  of  private  and  public  charitable  hospitals 
for  damages  for  malpractice,  holding  the  former  liable 
in  damages  for  the  negligence  of  its  servants,  while 
the  latter  are  only  held  liable  to  their  patients  for 
the  failure  to  exercise  due  care  in  the  selection  of  its 
agents.  The  reason  for  this  distinction  is  that  the 
latter  institutions  have  no  capital  stock,  no  provi- 
sions for  making  dividends  or  profits,  and  whatever 
they  may  receive  from  any  source  they  hold  in  trust 
to  be  devoted  to  the  object  of  sustaining  the  hospital 
and  increasing  its  benefits  to  the  public,  by  extending 
or  improving  its  accommodations,  and  diminishing 
its  expenses.  Their  funds  are  derived  mainly  from 
public  and  private  charity;  their  affairs  are  conducted 
for  a  great  public  purpose,  that  of  administering  to 
the  comfort  of  the  sick,  without  any  expectation, 
on  the  part  of  those  immediately  interested  in  the 
corporation,  of  receiving  any  compensation  which  will 
enure  to  their  own  benefit,  and  without  any  right  to 
receive  such  compensation.2 

24.  ACTION   FOR   MALPRACTICE 

(a)  How  to  Defend  a  Malpractice  Suit. — Where  a 
medical  man  knows  that  he  has  performed  his  whole 

1  Hitchcock  v.  Burgett,  38  Mich.,  501. 

3  McDonald  v.  Massachusetts  General  Hospital,  120  Mass.,  432. 


ACTION  FOR  MALPRACTICE  201 

duty  according  to  the  best  of  his  skill  and  knowledge, 
and  according  to  the  most  approved  teachings  of  his 
particular  system,  and  he  is  unfortunate  enough  to 
become  the  defendant  in  a  malpractice  suit,  he  should 
never  compromise  or  settle,  for  he  owes  it  to  himself 
and  to  his  profession  to  vindicate  himself  before  the 
world.  He  should  employ  at  once  the  very  best 
lawyer  and  put  him  in  full  possession  of  all  the  facts 
in  his  case;  the  withholding  of  such  information  has 
lost  many  a  case,  for  it  is  just  as  impossible  for  an 
attorney  to  prepare  his  case  when  he  has  only  been 
given  part  of  the  facts,  or  when  the  facts  given  are 
highly  colored,  as  it  would  be  for  a  physician  correctly 
to  diagnosticate  a  case  when  the  patient  tells  him 
only  a  part  of  his  pains  and  troubles  and  his  history. 
Having  done  this  be  sure  to  have  for  your  witnesses, 
physicians  who  command  the  respect  of  both  profes- 
sions, men  who  are  both  honest  and  learned,  for  many 
a  case  has  been  lost  by  the  sorry  spectacle  some  wit- 
nesses make  in  the  hands  of  a  skilful  cross-examiner. 
After  securing  your  witnesses  see  to  it  that  your 
attorney  has  ample  opportunity  to  ascertain  in  detail 
what  their  testimony  will  be. 

(6)  Nature  of  Remedy. — Where  a  physician  or 
surgeon  is  employed  to  treat  a  patient  without  any 
express  contract  defining  the  character  and  the  extent 
of  his  duty  and  undertaking,  either  an  action  of  assump- 
sit  or  case  may  be  maintained  for  the  breach  of  the 
implied  contract  arising  from  such  employment  caused 
by  unskilful,  negligent,  and  improper  treatment  of 
the  patient.1  When  the  action  is  in  tort,  case  is  the 
proper  remedy.2  But  when  founded  upon  an  express 
promise  on  the  part  of  the  physician  the  action  is  in 

1  Kuhn  t.  Brownfield,  34  W.  Va.,  252,  12  S.  E.,  519. 
*  Mullin  v.  Flanders,  73  Vt.,  95.  50  All..  816. 


202  MALPRACTICE.  OR  NEGLIGENCE 

contract  and  not  in  tort.1  Where  an  operation  is 
performed  maliciously,  no  recovery  in  trespass  can 
be  had  if  the  patient  consented.2 

(c)  Who  May  Recover  Damages  for  Malpractice.— 
A  physician  or  surgeon  is  liable  for  damages  caused 
to   a  patient   by  a  failure   to  perform   his  contract.3 
When  a  married  woman  suffers  injuries  through  the 
negligence    of    a    physician    or   surgeon    the    husband 
may  recover  damages  for  the  loss  of  the  wife's  society 
and   services,    and   for   his   disbursements.      Likewise, 
when  a  child  is  injured  by  the  wrongful  act  or  omis- 
sion   of   a    physician    or  surgeon,   the   father,   or  any 
other  person  standing  in  loco  parentis,  may  maintain 
an  action   against  the  wrongdoer  to  recover  for    the 
resulting  loss  of  service  and  incidental  expenditures. 
In  cases  where  the  cause  of  action  is  made  to  survive 
the    injured    party    by    statute,    the    statute    usually 
provides"  by  whom  the  suit  shall  be  brought  and  prose- 
cuted.    And  when  a  servant  is  injured  by  the  mal- 
practice of  a  physician   his  master  may  recover  for 
loss  of  services.4 

(d)  When   Suit    Must   be    Commenced. — The   time 
in  which  a  malpractice  suit  must  be  brought  varies 
according  to  the  statutes  of  limitations  in  force  in  the 
different  States,  ranging  all  the  way  from  one  year 
up  to  five  years.     The  bothersome  question  is,  when 
does  the  statute  begin  to  run?     The  right  of  action 
accrues  and  the  statute  begins  to  run  at  the  time  the 
injury  is  received,  and  not  from  the  time  the  damage 
is  developed.5     An  interesting  case  in  this  relation  is 

1  Burns  v.  Barenfield,  84  Ind.,  43. 

2  Cadwell  v.  Farrell,  28  111.,  438. 

3  Small  v.  Howard,  128  Mass.,  131;  Pike  v.  Honsinger,  155  N.  Y.,  203. 

4  Cross  v.  Guthey,  2  Root  (Conn.),  90. 

6  Fadden  ».  Satterlee,  43  Fed.  Rep.,  568;  Coady  v.  Reins,  I  Mont.,  424; 
Me  Arthur  v.  Bowers,  72  Ohio  St.,  656. 


ACTION  FOR  MALPRACTICE  203 

that  of  Gillette  v.  Tucker,  67  Ohio  St.,  where  the  sur- 
geon employed  to  operate  upon  a  patient  for  what 
he  pronounced  to  be  appendicitis  neglected  or  care- 
lessly forgot  to  remove  from  the  abdominal  cavity 
a  sponge  which  he  had  placed  therein,  and  closed  the 
incision,  with  the  sponge  remaining  therein,  and  this 
condition  continued  during  his  entire  professional 
relation  to  the  case,  and  was  present  when  he  retired 
from  the  case.  The  supreme  court  held  that  the 
statute  of  limitations  did  not  commence  to  run  against 
a  right  to  sue  for  malpractice  until  the  case  has 
been  abandoned  or  the  professional  relation  other- 
wise terminated.  This  case  is  interesting  not  only 
because  of  the  peculiar  nature  of  the  facts  involved, 
but  because  the  same  court  three  years  later  overruled 
its  decision  in  an  unreported  case.1 

(e)  Survival  of  Action. — At  common  law  an  action 
for  an  injury  to  the  person  caused  by  the  want  of  skill 
or  negligence  of  a  physician  or  surgeon  did  not  sur- 
vive the  death  of  either  party,  although  it  was  based 
on  contract.2  The  statutes  of  the  several  States  have, 
however,  changed  the  law  in  this  respect,  so  that  in 
case  of  death  suit  may  be  brought  or  continued  by 
or  against  the  personal  representative.3 

(/)  How  Malpractice  May  be  Proved. — The  burden 
of  proof  in  malpractice  cases  is  upon  the  party 
attempting  to  show  lack  of  skill  or  want  of  care.4 
Whether  a  physician  has  attended  skilfully  or  properly 
a  particular  case  is  a  question  on  which  the  opinion 
of  medical  men  of  the  same  school  may  be  received 

1  McArthur  p.  Bowers,  72  Ohio  St.,  656. 

1  Long  v.  Morrison,  14  Ind.,  595;  Wolf  v.  Wall,  40  Ohio  St.,  in;  Wade  ». 
Kalbfleisch,  58  N.  Y.,  282. 

1  Harris  v.  Fall,  177  Fed.,  79;  Tefft  v.  Wilcox,  6  Kan.,  46. 

4  Chase  v.  Nelson,  39  111.  App.,  53;  Robinson  v.  Campbell,  47  Iowa,  625; 
Winner  p.  Lathrop,  67  Hun.  (N.  Y.),  511. 


204  MALPRACTICE  OR  NEGLIGENCE 

in  evidence,1  and  they  may  state  whether  or  not  in 
their  opinion  it  was  in  conformity  with  the  established 
mode  of  treatment,2  or  whether  an  amputation  has 
been  skilfully  performed.3 

Thus  a  physician  may  express  an  opinion  that  a 
limb  was  or  was  not  as  good  as  the  average  condition 
of  such  cases  treated  by  skilful  physicians.4  But 
proof  that  a  leg  which  has  been  set  is  shorter  than  the 
other  does  not  of  itself  establish  unskilful  treatment,5 
neither  does  proof  of  the  failure  of  a  physician  to 
effect  a  cure  of  a  dislocated  clavicle  of  itself  show  a 
want  of  care  or  skill  in  its  treatment,  where  it  appears 
that  results  are  not  satisfactory  under  any  form  of 
treatment,  and  there  is  no  assurance  that  the  bone 
will  permanently  remain  in  place.6 

As  was  said  by  the  court  in  an  Illinois  case:  ''Proof 
of  a  bad  result  or  of  a  mishap  is  of  itself  evidence  of 
negligence  or  lack  of  skill.  The  defendant  is  qualified 
to  practise  medicine  and  surgery,  and  the  evidence 
of  the  experts  in  his  profession  show  him  competent 
and  skilful.  Before  a  recovery  could  be  had  against 
him  it  must  be  shown  that  his  treatment  was  improper 
or  negligent,  not  merely  that  he  was  mistaken  or  that 
his  treatment  resulted  injuriously  to  the  plaintiff.  A 
physician  or  surgeon,  or  one  who  holds  himself  out 
as  such,  is  only  bound  to  exercise  ordinary  skill  and 
care  in  the  treatment  of  a  given  case,  and  in  order 
to  hold  him  liable  it  must  be  shown  that  he  failed  to 
exercise  such  skill  and  care. 

1  Hoener  v.  Koch,  84  111.,  408;  Mayo  v.  Wright,  63  Mich.,  32;  Heath  ». 
Glisan,  3  Or.,  67;  Roberts  v.  Johnson,  58  N.  Y.,  613;  Wright  v.  Hardy,  22 
Wis.,  348. 

2  Twombly  v.  Leach,  n  Cush.  (Mass.),  405. 

3  Tullis  ».  Rankin,  6  N.  Dak.,  44;  Olmsted  ».  Gere,  100  Pa.,  127. 

4  Olmsted  v.  Gere,  100  Pa.,  127. 
8  Piles  v.  Hughes,  10  Iowa,  579. 

6  Tomer  v.  Aiken,  126  Iowa,  114;   101  N.  W.,  769. 


ACTION  FOR  MALPRACTICE  205 

'The  jury  cannot  draw  the  conclusion  of  unskil- 
fulness  from  proof  of  what  the  result  of  the  treatment 
was,  but  that  the  treatment  was  improper  must  be 
shown  by  evidence."  The  gist  of  the  action  in  this 
case  was  that  the  physician  was  mistaken  as  to  the 
existence  of  a  rupture,  and  applied  a  truss  which,  it 
was  alleged,  caused  an  abscess.1  It  is  not  necessary 
that  the  opinion  of  a  medical  expert  in  a  malpractice 
case  should  be  asked  upon  any  particular  part  of  the 
treatment,  but  taking  the  whole  treatment  together 
he  may  be  asked  whether  it  "was  proper  or  improper."1 
And  a  physician  who  has  attended  a  patient  under 
the  care  of  a  brother  physician  may  testify  as  to  what, 
so  far  as  he  could  judge,  had  been  the  first  physician's 
treatment;  in  what  respects  it  differed  from  his  own; 
what  effect,  so  far  as  he  could  judge,  it  had  upon  the 
plaintiff,  and  whether  or  not  he  saw  any  evidence 
that  the  plaintiff  had  been  injured  by  his  treatment.3 
If  a  physician  or  surgeon  is  intoxicated  when  he 
performs  a  surgical  operation,  that  fact  may  be  shown 
as  part  of  the  res  gestae,  where  he  is  sued  for  mal- 
practice.4 The  plaintiff  in  an  action  for  malpractice 
has  a  right  to  show  his  injuries  and  scars  to  the  jury, 
and  as  a  matter  of  fact,  generally  takes  advantage  of 
the  privilege.  Thus  it  has  been  held  that  it  was  not 
error  to  permit  the  patient  to  exhibit  his  shoulder  to 
the  jury.5  The  plaintiff  in  an  action  for  malpractice 
must  fail  upon  a  showing  equally  consistent  with 
negligence,  or  with  reasonable  care  on  the  part  of  the 
physician.6 

1  Sims  v.  Parker,  41  111.  App.,  284. 

1  Mayo  v.  Wright,  63  Mich.,  32. 

1  Barber  v.  Merriam,  11  Allen  (Mass.),  322. 

4  Robinson  v.  Pioche,  5  Cal.,  461;  Alger  v.  Lowell,  3  Allen  (Mass.),  402. 

1  Hess  v.  Lowry,  122  Ind.,  225. 

1  Farrell  v.  Haze,  157  Mich.,  374. 


206  MALPRACTICE  OR  NEGLIGENCE 

(g)  Defences. — (i)  In  General.- — Besides  the  de- 
fences of  contributory  negligence  on  the  part  of  the 
plaintiff,  and  the  fact  that  he  has  waited  too  long 
before  commencing  his  suit  for  malpractice,  there 
are  several  other  defences  that  may  be  set  up.  One 
is  that  perhaps  a  medical  practitioner  may  protect 
himself  from  liability  for  unskilfulness  by  special 
contract  with  his  patient  that  he  shall  not  be  so  liable.1 
It  is  no  defence  to  a  suit  for  malpractice  that  the 
physician  is  practising  in  violation  of  law.2 

(2)  Admission  of  Inadequate  Skill. — If  a  physician 
has  informed   his   patient  that  he  has  not  sufficient 
skill   to  treat  his  case  the  patient  cannot  complain  of 
the  lack  of  such  skill  when  he  knew  it  did  not  exist. 
Thus   where    upon    the    trial    of    a   malpractice   case 
it  appeared  by  the  testimony  of  one  of  the  defend- 
ants, who  were  the  attending  physicians  or  surgeons, 
that  after  examination  of  the  wound  he  immediately 
announced   that  it  was   of  such   a  serious   character 
that  he  did  not  regard  himself  as  sufficiently  experi- 
enced in  surgery  to  properly  treat  the  case,  and  that 
he  advised  the  father  of  the  plaintiff,   an  infant,   to 
call  in  the  service  of  a  more  experienced  surgeon,  and 
another  doctor,  who  was  also  a  party  defendant,  was 
called  in  to  aid  in  the  operation,  it  was  held  proper 
to  charge  the  jury  that  the  patient  could  not  com- 
plain of  the  lack  of  skill,  where  the  physician  frankly 
informed  him  of  his  want  of  skill.3 

(3)  Other  Proximate  Cause  of  Injury. — Where  there 
are  two  or  more  possible  causes  of  an  injury,  for  one 
or  more  of  which  the  physician  is  not  responsible,  the 
patient,  in  order  to  recover,  must  show  by  evidence 

1  Nelson  v.  Harrington,  72  Wis.,  591. 

2  Musser  v.  Chase,  72  Wis.,  577. 

8  Lorenz  v.  Jackson,  88  Hun.  (N.  Y.),  200;  Small  v.  Howard,  128  Mass.,  130. 


ACTION  FOR  MALPRACTICE  207 

that  the  injury  was  wholly  or  partly  the  result  of  that 
cause  which  would  render  the  defendant  [the  physi- 
cian] liable.  If  the  evidence  in  the  case  leaves  it 
just  as  probable  that  the  injury  was  the  result  of  one 
cause  as  of  the  other  the  plaintiff1  cannot  recover. 

Thus  where  the  evidence  given  in  an  action  brought 
to  recover  damages  for  the  death  of  a  patient,  caused 
by  the  alleged  negligence  of  physicians,  who,  while 
performing  an  operation  upon  the  deceased,  admin- 
istered chloroform  to  him,  presents  two  possible 
causes  of  the  intestate's  death — one,  the  chloroform 
administered  by  the  defendants,  and  the  other,  cal- 
careous degeneration  of  the  heart — a  failure  on  the 
part  of  the  plaintiff  to  show  that  death  resulted, 
wholly  or  in  part,  from  the  chloroform,  precludes  a 
recovery  by  him.2  Neither  can  a  patient  recover  if 
no  injury  resulting  from  the  act  of  the  physician  is 
shown.3  Surgeons  are  not  liable  where  death  is  caused 
by  disease  not  produced  by  the  operation.4  In  an 
action  against  him  for  malpractice  a  clairvoyant 
physician  cannot  be  heard  to  charge  the  plaintiff's 
father  with  negligence  because,  with  full  knowledge 
of  defendant's  methods  of  diagnosis  and  prescription, 
he  employed  him  to  treat  his  son.5 

(4)  Negligence  of  Assistant. — And  a  surgeon  is  not 
relieved  of  the  consequences  of  his  own  negligence 
because  of  the  negligence  of  his  assistant.  Thus  a 
surgeon  who  assists  in  removing  his  patient  upon 
whom  he  has  operated  from  the  operating  room  to 
her  private  room  in  a  hospital,  although  not  in  actual 
charge  of  her  at  that  particular  time,  is  bound  to  use 

1  Grant  ».  P.  &  N.  Y.  C.  &  R.  Co.,  133  N.  Y.,  657. 
1  Yaggle  v.  Allen,  24  App.  Div.  (N.  Y.),  594. 
1  Craig  v.  Chambers,  17  Ohio  St.,  253. 
*  State  v.  Housekeeper,  70  Md.,  162. 
•Nelson  r.  Harrington,  72  Wis.,  591. 


208 

reasonable  care  for  her  safety,  and  he  will  not  be 
excused  for  his  failure  to  do  so  because  his  assistant 
has  been  negligent.1 

(5)  Judgment  for  Services  as  Bar  to  Malpractice 
Suit. — Upon  the  subject  whether  or  not  a  judgment 
rendered  in  a  suit  for  fees  in  favor  of  a  physician 
estops  the  patient  from  bringing  an  action  for  mal- 
practice the  decisions  are  much  divided.  In  New  York 
in  the  leading  case  of  Gates  v.  Preston,  41  N.  Y.,  113, 
and  in  Bellinger  v.  Craigue,  31  Barb.  534,  the  affirma- 
tive was  held,  and  such  has  been  the  uniform  current 
of  decision  in  that  State.2  New  Jersey,  Arkansas, 
and  perhaps  other  States  have  followed  the  New  York 
decisions.3  Upon  the  other  hand,  Indiana,  Ohio, 
Wisconsin,  West  Virginia,  and  perhaps  other  States 
have  followed  a  contrary  doctrine.4 

The  dividing  line  between  the  New  York  decisions 
and  those  of  the  States  which  have  taken  a  contrary 
view  is  upon  the  fact  whether  the  judgment  obtained 
by  the  physician  was  a  judgment  by  default;  for  all 
the  cases  concede  that  if  the  patient  has  appeared 
and  defended  the  action  on  the  ground  of  neglect 
or  want  of  skill,  the  judgment  against  him  is  an 
estoppel,  and  he  cannot  bring  his  cross-action  for 
malpractice.  But  when  the  judgment  is  by  default 
and  no  defence  has  been  made,  the  majority  of  cases 
would  seem  to  hold  that  the  question  of  malpractice 
was  not  involved,  and  that  the  patient  has  not  im- 
paired his  right  of  action  by  neglecting  or  refusing 
to  appear  to  the  suit  against  him.  Finding  this 

1  Haase  v.  Morton  &  Morton,  138  Iowa,  205. 

2  Blair  v.  Bartlett,  75  N.  Y.,  150;  Dunham  v.  Bower,  77  N.  Y.,  76. 

3  Ely  v.  Wilbur,  49  N.  J.  L.,  685;  Dale  v.  Donaldson  Lumber  Co.,  48  Ark., 
188. 

4  Goble  v.  Dillon,  86  Ind.,  327;  Sykes  v.  Bonner,  I  Cin.  R.(  464;  Lawson 
v.  Conaway,  37  W.  Va. ;  Ressequie  v.  Byers,  52  Wis.,  650. 


ACTION  FOR  MALPRACTICE  209 

contrariety  of  opinion  in  the  courts  of  last  resorts  we 
can  only  say  that  it  depends  upon  the  State  in  which 
the  physician  happens  to  be  practising  whether  he  can 
set  up  his  judgment  for  fees  as  a  bar  to  a  malpractice 
suit. 

(h)  Right  to  a  Physical  Examination  of  the  Plaintiff. 
—Whether  the  defendant  [the  physician]  has  the 
right  to  compel  the  plaintiff  [the  patient]  to  submit 
to  a  physical  examination  has  been  the  subject  of 
much  controversy.  No  such  right  existed  at  common 
law,  but  in  a  great  many  States  it  is  now  regulated 
by  statute.  In  the  absence  of  statute  upon  the  sub- 
ject the  weight  of  authority  seems  to  be  that  trial 
courts  have  the  power  to  order  the  surgical  examina- 
tion by  experts  of  a  patient  seeking  a  recovery  for 
physical  injuries;  that  the  defendant  has  no  absolute 
right  to  have  an  order  made  to  that  end  and  executed, 
but  that  the  motion,  therefore,  is  addressed  to  the 
sound  discretion  of  the  court;  that  the  exercise  of 
that  discretion  will  be  reviewed  on  appeal,  and  cor- 
rected in  case  of  abuse;  and  that  the  examination  should 
be  ordered  and  had  under  the  direction  and  control 
of  the  court  whenever  it  fairly  appears  that  the  ends 
of  justice  require  the  disclosure  or  more  certain  ascer- 
tainment of  facts  which  can  only  be  brought  to  light 
or  fully  elucidated  by  such  an  examination,  and  that 
the  examination  may  be  made  without  danger  to 
the  plaintiff's  life  or  health,  and  without  the  infliction 
of  serious  pain.1  The  power  of  the  courts  to  this 

1  Ala.  Great  So.  Ry.  Co.  v.  Hill,  90  Ala.,  71;  Richmond  &  D.  R.  Co.  ». 
Childress.  82  Ga.,  719;  Schroeder  v.  Chicago  R.  I.  &  P.  R.  Co.,  47  la.,  375; 
Atchison,  T.  &  S.  F.  R.  Co.  r.  Thul,  29  Kan.,  466;  Graves  v.  Battle  Creek, 
95  Mich.,  266;  Hatfield  v.  St.  Paul  &  D.  R.  Co.,  33  Minn.,  130;  Owens  v. 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  95  Mo.,  169;  Stuart  v.  Havens,  17  Nebr., 
211 ;  Miami  &  M.  Turnp.  Co.  v.  Baily,  37  Ohio  St.,  104;  International  G. 
N.  R.  Co.  ».  Underwood,  64  Tex.,  463;  White  P.  Milwaukee  City  R.  Co., 
6 1  Wis.,  536. 

14 


210  MALPRACTICE  OR  NEGLIGENCE 

end  is  denied  in  Illinois  in  a  very  meager  opinion  of 
the  supreme  court,  in  which  the  subject  is  dismissed 
with  the  assertion  that  "the  court  had  no  power  to 
make  or  enforce  such  an  order."1 

(i)  Who  are  Judges  of  Skill. — The  definition  of 
what  constitutes  ordinary  skill,  care,  and  diligence 
is  a  question  of  law,  but  the  application  of  the  law 
to  the  facts  is  for  the  jury,  so  that  the  question 
whether  or  not  there  has  been  due  care  in  the 
particular  case  is  a  mixed  question  of  law  and 
fact.  Whether  a  physician  in  making  a  diagnosis 
uses  ordinary  care  and  skill  is  a  question  of  fact  for 
the  jury,2  and  it  is  for  the  jury  to  say  on  the  evidence 
whether  the  omission  of  certain  treatment  was  or 
was  not  negligence,3  and  what  treatment  amounts  to 
negligence  under  the  rule  of  skill  required.4  Whether 
a  surgeon  after  reducing  a  dislocation  of  the  hip  and 
discovering  a  tendency  not  to  remain  in  place  is  justified 
in  adopting  a  rude  substitute  for  the  regulation  splint 
to  keep  it  in  place  is  a  question  for  the  jury.5  But 
it  has  been  held  that  juries  should  not  be  allowed  to 
determine  for  themselves  by  inspection  whether  a 
physician's  course  of  treatment  has  been  improper,6 
and  if  the  treatment  is  according  to  a  recognized 
system  of  surgery  the  court  and  jury  cannot  under- 
take to  determine  whether  that  system  is  the  best.7 
The  determination  of  the  question  whether  there 
has  been  a  lack  of  due  care  and  skill  on  the  part  of  a 
surgeon  in  the  performance  of  an  operation,  or  not, 
is  for  the  jury  under  appropriate  instructions  by  the 

1  Parker  v.  Enslow,  102  111.,  272. 

2  Harriott  v.  Plimpton,  166  Mass.,  585. 

3  Carpenter  v.  Blake,  60  Barb.,  488. 

4  Hewitt  ».  Eisenbart,  36  Nebr.,  794. 

5  Vanhooser  v.  Berghoff,  90  Mo.,  487. 

6  Carstens  v.  Hanselman,  61  Mich.,  426. 

7  Williams  v.  Poppleton,  3  Or.,  139. 


ACTION  FOR  MALPRACTICE  211 

court  looking  to  the  facts  of  the  case,  and  the  testi- 
mony .of  expert  surgeons.  Courts  and  juries  must 
depend  almost  entirely  in  many  cases  upon  the  medical 
profession,  for  as  has  been  well  stated:  "The  question 
whether  a  surgical  operation  has  been  unskilfully 
performed  or  not  is  one  of  science,  and  is  to  be  deter- 
mined by  the  testimony  of  skilful  surgeons  as  to  their 
opinion,  founded  either  wholly  upon  an  examination 
of  the  parts  operated  upon  or  partly  upon  such  ex- 
amination, partly  upon  such  information,  and  partly 
on  facts  conceded  or  proved  at  the  trial;  or  partly 
on  such  examination  and  partly  on  facts  conceded  or 
proved  at  the  trial."1  Thus  it  has  been  held  neces- 
sary to  warrant  a  finding  that  a  physician  is  guilty 
of  malpractice,  it  has  been  held  that  there  must  be 
medical  expert  testimony  to  show  it.2  The  damages 
for  malpractice  must  all  be  recovered  in  a  single  action t 
and  successive  suits  cannot  be  brought  for  damage 
subsequently  accruing.3 

(j)  Measure  of  Damages  in  Malpractice  Suits.— 
'The  practice  of  surgery  is  indispensable  to  the 
community,  and  while  damages  should  be  paid  for 
negligence  and  carelessness,  surgeons  should  not  be 
deterred  from  the  pursuit  of  their  profession  by  intem- 
perate and  extravagant  verdicts."4 

(i)  COMPENSATORY  DAMAGES.  —  The  measure  of 
damages  in  a  malpractice  case  is  determined  by  the 
amount  in  money  which  will  give  compensation  to  the 
party  injured  for  the  actual  loss  sustained.5  Suffering 
also,  which  is  produced  in  consequence  of  the  acts 

1  McClelland's  Civil  Malpractice,  304. 
1  Wilkins'  Admr.  r.  Brock  and  Rosselli,  81  Vt.,  332. 
1  Howell  P.  Goodrich,  69  111.,  556. 
4  Howard  r.  Grover,  28  Me.,  97. 

»  Tefft  r.  Wilcox,  6  Kan.,  46;  Curtis  r.  Rochester  &  S.  Ry.,  20  Barb.,  282; 
Sale  v.  Eichberg,  105  Tenn.,  333;  59  S.  W.,  1020. 


212  MALPRACTICE  OR  NEGLIGENCE 

in  question,  may  be  a  subject  of  compensation.1  So 
also  the  loss  of  time,2  and  actual  expenses  incurred 
in  consequence  of  the  fault,  want  of  skill  or  negligence 
of  the  physician.  Regard  is  also  to  be  had  in  such 
case  to  the  character  of  the  resulting  injury,  as  to 
whether  it  be  temporary  or  permanent  in  its  conse- 
quences.3 They  are  given  for  present  and  prospective 
damage,  and  may  cover  the  actual  pecuniary  loss 
sustained;  the  indirect  pecuniary  loss;  diminution  of 
means  of  earning  a  living;  deprivation  of  the  services 
of  the  wage  earner;  loss  of  the  services  of  wife  or 
child.4 

In  addition,  if  the  act  was  criminal,  oppressive,  or 
grossly  negligent  the  jury  may  award  exemplary 
damages  by  way  of  punishment. 

Illustrations  of  Compensatory  Damages. — In  order 
to  give  some  idea  of  what  juries  have  considered  a 
fair  compensation  for  the  loss  actually  sustained,  we 
have  set  out  the  verdicts  given  in  a  number  of  mal- 
practice cases  involving  a  variety  of  injuries,  and 
how  the  highest  court  in  each  State  regarded  them. 
In  an  action  for  alleged  malpractice  in  the  setting 
and  treatment  of  a  patient's  arm  the  jury  rendered 
a  verdict  for  the  plaintiff  for  $7000.  The  physician 
moved  for  a  new  trial,  but  the  patient  having  consented 
to  a  reduction  of  the  verdict  to  $5200  the  motion 
was  denied.5  A  verdict  for  $5583.33  for  the  plaintiff 

1  Lathrope  v.  Flood  (Cal.),  63  Pac.,  1007. 

2  Tefft  v.  Wilcox,  6  Kan.    46;  McCracken  v.  Smathers,  122  N.  C.,  799;  29 
S.  E.,  354;  Jones  v.  Northmore,  46  Vt.,  587. 

3  Indianapolis,  etc.,  Ry.  v.  Gaston,  58  Ind.,  224;  Tefft  v.  Wilcox,  6  Kan., 
46;  Dorris  v.  Warford,  30  Ky.  L.  Rep.,  963;  100  S.  W.,  312;  Chamberlain  v. 
Porter,  9  Minn.,  260;  Whalen  v.  St.  Louis,  etc.,  Ry.,  60  Mo.,  323;  McCracken 
v.  Smathers,  122  N.  C.,  799. 

4  Recovery  for  malpractice  may  embrace  prospective  damages,  Howell  v.  Good- 
rich, 69  111.,  556;  Becker  v.  Janinski,  27  Abb.  N.  Cas.,  45. 

5  Getchell  v.  Lindley,  24  Minn.,  265. 


\(TION  FOR  MALPRACTICE  213 

in  an  action  against  a  physician  whom  he  employed 
to  treat  him  for  eczema  and  who  injured  him  by  the 
alleged  negligence  in  applying  x-rays  to  his  hand,  has 
been  held  not  to  be  excessive.1  The  sum  of  $4500 
has  been  held  not  to  be  such  excessive  damages  as 
will  warrant  a  new  trial  in  a  suit  against  a  surgeon 
for  malpractice,  the  result  of  gross  ignorance  and 
mismanagement,  whereby  the  patient  was  made  help- 
less for  life.2  "A  verdict  of  $4000  for  malpractice  in 
negligently  communicating  a  private  disease  by  the 
use  of  infected  instruments  is  excessive,  and  should 
be  reduced  to  $2000  where  the  plaintiff  was  fully 
cured  without  permanent  disability,  and  her  losses 
were  less  than  $200,  the  balance  being  due  for  pain 
and  suffering,  which  must  be  limited  to  compensatory 
damages."3  A  verdict  against  a  physician  for  $2025 
for  an  alleged  error  in  judgment  in  not  removing  more 
of  a  diseased  limb  was  held  excessive,  where  it  was  by 
no  means  certain  that  the  removal  of  a  larger  portion 
would  have  been  effectual.4  A  verdict  for  $5000 
damages  for  malpractice  in  a  case  of  confinement  was 
held  under  the  evidence  to  indicate  passion  and 
prejudice.  The  injury  in  this  case  was  the  alleged 
lack  of  proper  care  and  skill  in  treating  the  injury, 
which  was  a  separation  of  the  pelvic  bones.5  A  verdict 
of  $2000  for  the  unwarranted  abandonment  of  a 
confinement  case  has  been  held  not  to  be  excessive. 
A  verdict  of  $3000  for  an  injury  from  malpractice 
resulting  in  much  suffering,  and  finally  in  a  difficult 
operation,  in  removing  one  of  plaintiff's  ovaries, 
impairing  her  health  and  genital  function,  has  been 

1  Hales  ».  Raines,  130  S.  W.,  425. 

1  Kelsey  v.  Hay,  84  Ind.,  189. 

1  Helland  v.  Bridenstine,  55  Wash.,  470. 

4  Howard  v.  Grover,  28  Me.,  97. 

J  Reynolds  v.  McManus,  139  Iowa,  242. 


214  MALPRACTICE  OR  NEGLIGENCE 

held  not  to  be  excessive.1  A  verdict  for  $2000  in  a 
malpractice  case  has  been  held  to  be  excessive  and 
required  to  be  reduced  to  $1200,  where  the  circum- 
stances of  the  case  were  as  follows:  A  physician  per- 
formed an  operation  January  16,  1905,  and  left  gauze 
in  the  wound,  which  might  properly  have  been  allowed 
to  remain  about  a  week,  but  which  was  not  removed 
until  February  27  following.  The  wound  healed 
within  a  few  days  thereafter,  and  the  patient  recovered 
immediately  after  a  subsequent  operation  for  hernia, 
showing  that  the  suffering  from  melancholia,  head- 
ache, and  insomnia  was  due  to  the  hernia  rather 
than  other  conditions  produced  by  leaving  the  gauze 
pad  in  the  abdomen.  And  the  evidence  showed  that 
it  was  exceedingly  doubtful  whether  hernia  was 
attributable  to  the  delay  in  healing  due  to  the  gauze.2 
So  an  award  of  $3500  for  leaving  a  sponge  in  the 
abdomen  has  been  allowed  to  stand,  where  such  negli- 
gence caused  the  intestines  to  ulcerate,  creating  a 
fistula  which  emitted  fecal  matter  and  noxious  gases 
to  serious  impairment  of  the  plaintiff's  health  and 
caused  her  sickness  and  mental  anguish.3 

An  award  of  $1000  for  negligence  in  the  case  of  a 
broken  leg,  whereby  it  was  shortened  three-fourths  of 
an  inch,  has  been  allowed  to  stand.4  For  the  improper 
treatment  of  an  eye  the  patient  has  been  awarded 
$362.75  where  the  loss  of  sight  in  one  eye  resulted.5 
And  for  the  improper  and  unsuccessful  treatment  of  an 
arm  which  resulted  in  permanent  disability  $1000  has 
been  held  to  be  fair  compensation.6 

1  Allen  v.  Voje  (Wis.),  89  N.  W.,  924. 

2  Lathrope  v.  Flood  (Cal.),  63  Pac.,  1007;  Reynolds  v.  Smith  (Iowa),  127 
N.  W.t  192. 

3  Samuels  v.  Willis,  133  Ky.,  459. 

4  Hallam  v.  Means,  82  111.,  379. 

•'  McMurdock  ».  Kimberlin,  23  Mo.  App.,  523. 
6  Wood  v.  Clap,  4  Sneed  (Term.),  65. 


ACTION  FOR  MALPRACTICE  215 

Mental  suffering  naturally  attending,  and  incident 
to,  physical  pain,  prolonged  by  the  failure  of  a  physi- 
cian to  discover  the  seat  of  a  bodily  injury,  is  a  proper 
element  of  damages  for  the  failure  of  a  physician  to 
discover  a  serious  dislocation  of  a  patient's  shoulder 
and  a  fracture  of  an  arm  where  there  was  a  reason- 
able opportunity  for  examination  and  the  dislocation 
and  fracture  could  have  been  ascertained  by  the 
exercise  of  ordinary  care.1 

(2)  NOMINAL    DAMAGES. — Nominal    damages    is    a 
trifling  sum  awarded  when  a  breach  of  duty  or  an 
infraction   of   the   plaintiff's   right   is   shown,    but   no 
substantial    loss   is   proved    to   have   been    sustained. 
Nominal  damages  are  proper  where  lack  of  care  and 
skill  by  the  physician  or  surgeon  is  shown,  but  where 
it    is    impossible    to   distinguish    between    the    conse- 
quences of  the  physical  ailment  for  which  the  patient 
was  being  treated  and  those  of  the  lack  of  professional 
skill  and  care.2    Expediting  the  death  of  a  patient  by 
carelessness,   inhuman   treatment  on  the  part  of  the 
attending  physician,   is  not  a  mere  technical   injury, 
compensated   for  by  nominal  damages,   but  calls  for 
compensatory    and    even    punitive    damages    at    the 
hands  of  the  jury.3 

(3)  EXEMPLARY  DAMAGES. — In  an  action  for  mal- 
practice   against    a    physician    for    non-fulfilment    of 
contract  in  the  treatment  of  a  disease,  and  for  gross 
negligence  in  the  treatment  of  the  same  the  plaintiff 
is  entitled  to  vindictive  as  well  as  actual  damages.4 

Thus  it  has  been  held  that  exemplary  damages 
were  properly  awarded  in  a  case  where  the  physician 
sued  had  attended  a  woman  in  childbirth  and  had, 

1  Manser  v.  Collins,  69  Kan.,  290. 

*  Larson  P.  Chase,  47  Minn.,  307;  Becker  p.  Janinski,  27  Abb.  N.  C.,  45. 

1  Gray  p.  Little,  126  N.  C.,  385. 

4  Cochran  p.  Miller,  13  Iowa,  128;  Brooke  p.  Clarke,  57  Texas,  105. 


216  MALPRACTICE  OR  NEGLIGENCE 

immediately  on  the  birth  of  the  child  and  before  its 
removal  from  bed,  tied  two  ligatures  and  cut  the 
umbilical  cord,  where  the  next  morning  it  was  found 
that  one  ligature  had  been  tied  so  tightly  around  the 
child's  penis  that  it  resulted  in  a  loss  of  nearly  all 
the  glands  of  that  member.1  The  judge  who  wrote 
the  opinion  in  the  case  commenting  thus:  "The 
criminal  indifference  of  the  physician  to  results  wras  a 
fact  which  the  jury  were  at  liberty  to  infer  from  the 
gross  mistake  which  he  either  made  or  permitted  to 
be  made,  and  the  grievous  injury  which  was  liable 
to  result  and  did  result  therefrom.  If  there  was  other 
evidence  tending  to  negative  any  wrong  intent  or 
actual  indifference  on  his  part,  still  the  existence  or 
non-existence  of  such  criminal  indifference  was  a 
question  of  fact  for  the  jury,  and  was  rightly  sub- 
mitted to  them.  If  the  conduct  of  the  physician  as 
accoucheur  was  so  grossly  negligent  as  to  raise  the 
presumption  of  his  criminal  indifference  to  results,  we 
very  greatly  doubt  whether  it  would  avail  to  exempt 
him  from  exemplary  damages  to  show  that  he  had  no 
bad  motive  and  that  he  acted  otherwise  in  a  manner 
tending  to  show  that  he  was  not  at  heart  indifferent. 
Where  the  act  is  so  grossly  negligent  as  to  raise  the 
presumption  of  indifference,  evidence  that  in  other 
matters  connected  therewith  he  had  shown  due  care, 
and  that  actual  indifference  would  have  been  in  fact, 
indifference  to  his  own  interest,  should,  we  think, 
not  be  considered  by  the  jury  in  fixing  the  amount 
of  exemplary  damages."1 

(&)  New  Trial  or  Review. — New  Trial. — In  case  the 
preponderance  of  the  evidence  against  the  verdict  is  so 
great  that  it  is  an  abuse  of  discretion  not  to  grant  a  new 
trial,  and  submit  the  case  to  another  jury,  as  was  said  by 

1  Brooke  v.  Clarke,  57  Tex.,  105. 


ACTION  FOR  MALPRACTICE  217 

Judge  Mitchell :  "  It  is  not  merely  a  sum  of  money,  but 
also  the  reputation  of  the  defendant  as  a  physician 
and  surgeon  which  is  involved,  and  we  do  not  think 
that  he  should  stand  condemned  for  all  time  as  an 
incompetent  upon  the  state  of  the  evidence  disclosed 
by  the  record,  without  at  least  submitting  the  question 
to  one  more  jury  of  his  countrymen."1  A  new  trial 
on  account  of  excessive  damages,  in  a  suit  against  a 
surgeon  for  malpractice,  will  only  be  granted  where 
they  are  so  excessive  as  to  indicate  that  the  jury 
acted  from  prejudice,  partiality,  or  corruption,  or  were 
misled  as  to  the  proper  measure  of  damages.2 

Review. — The  erroneous  admission  of  evidence, 
and  the  giving  of  an  erroneous  instruction  to  the 
jury  in  a  malpractice  case  is  not  a  fatal  error,  where 
it  is  harmless  or  does  not  prejudice  either  party.3 
Where  there  is  a  fair  conflict  in  the  testimony  of 
experts,  and  there  is  no  such  preponderance  as  to 
enable  the  court  to  say  that  the  jury  did  not  give 
to  that  kind  of  testimony  due  consideration,  the 
verdict  must  stand.4  Where,  however,  the  evidence 
greatly  preponderates  against  the  verdict,  the  judg- 
ment will  be  reversed  and  a  new  trial  granted.5 

1  Martin  ».  Courtney,  75  Minn.,  256. 
1  Kelsey  v.  Hay,  84  Ind.,  189. 

3  Whitesell  v.  Hill,  101  Iowa,  629. 

4  Getchell  ».  Lindley,  24  Minn.,  265. 

*  Yaggle  v.  Allen,  24  App.  Div.  (N.  Y.).  594. 


CHAPTER  VII 

CRIMINAL  LIABILITY  OF   PHYSICIANS  AND 

SURGEONS 

i.  FOR  UNAUTHORIZED   PRACTICE   OF  MEDICINE 

(a)  In  General. — Under  all  the  statutes  regulating 
the  practice  of  medicine  the  gist  of  the  offence  con- 
sists in  practising  without  having  procured  a  license 
or  without  having  registered.  Hence  the  indictment 
must  affirmatively  aver  the  failure  of  the  physician 
to  comply  with  the  regulations  of  the  statute.1  It 
need  not  allege  that  he  has  received  any  fee  or  reward 
for  his  services.2 

It  is  necessary  in  a  prosecution  for  practising  with- 
out authority  to  state  specifically  the  essential  facts 
constituting  the  offence.3 

The  statutes  of  a  great  many  of  the  States  which 
have  enacted  laws  regulating  the  practice  of  medicine 
and  surgery  prescribe  a  penalty  for  the  violation  of 
the  law.  The  amount  of  the  fine  and  the  term  of  im- 
prisonment being  largely  discretionary  with  the  court, 
the  statute  fixing  the  minimum  and  maximum  fine 
and  sentence.  Under  these  statutes  it  is  immaterial 
how  well  qualified  a  person  may  be  to  practise  medi- 
cine if  he  has  not  qualified  according  to  the  provisions 
of  the  State  law  upon  that  subject. 

1  State  v.  Fussell,  45  Ark.,  65;  State  v.  Hathaway,  106  Mo.,  236;  Jones  v. 
State,  49  Nebr.,  609;  State  v.  Call,  121  N.  C.,  643;  Derrick  v.  State,  34  Tex. 
Crim.  Rep.,  21. 

2  State  v.  Call,  121  N.  C.,  643. 

8  O'Connor  v.  State,  46  Nebr.,  157;  64  N.  W.,  719;  Denton  v.  State,  21  Nebr., 
445;  32  N.  W.,  222. 


FOR  GROSS  NEGLIGENCE  OR  LACK  OF  SKILL    219 

(6)  Burden  of  Proof. — The  prosecution  needs  only 
to  prove  that  defendant  practised  or  held  himself 
out  as  practising  medicine,  as  alleged  in  the  indict- 
ment. The  defendant  [the  physician]  must  then 
rebut  the  State's  proof  by  evidence  that  he  did  not 
do  the  acts  testified  to  by  the  people's  witness,  or 
show  that  he  is  licensed  and  registered  as  the  statute 
requires,  or  that  he  is  within  the  exceptions  of  the 
statute.1  If  the  defendant  [the  physician]  claims  an 
exemption  from  the  provisions  of  the  statute  allow- 
ing persons  to  practise  medicine  for  the  reason  that 
they  have  been  in  active  practice  before  the  passage 
of  the  act,  the  burden  of  proof  is  on  him  to  show  that 
he  was  engaged  in  practice  at  that  time.2 

(c)  Proof  of  License  or  Diploma. — Where  the  license 
is  conferred  by  the  State  the  certificate  may  readily 
be  produced  and  proved.  In  some  jurisdictions  a 
transcript  of  the  record  is  expressly  made  prima  facie 
evidence  of  its  facts.  Whenever  a  candidate  is  admitted 
to  practise  medicine  and  surgery  by  virtue  of  a  diploma, 
the  accused  must  show  the  authority  of  the  institution 
to  confer  the  degree,  and  also  the  regularity  of  the 
document,  and  that  the  bearer  is  the  lawful  possessor 
of  such  diploma,  and  that  he  has  complied  with  pre- 
liminary requirements.3 


2.  FOR   GROSS   NEGLIGENCE   OR  LACK   OF   SKILL 

The  rule  in  the  United  States,  and  that  is  the  only 
rule  we  have  deemed  it  wise  to  consider  in  this  work, 
as  the  more  rules  the  more  confusing  the  subject 

1  Benham  r.  State,  116  Ind.,  112;  People  v.  Fulda,  52  Hun.  (N.  Y.),  65; 
Raynor  v.  State,  62  Wis.,  289. 
1  Morris  ».  State,  117  Ga.,  i. 
*  Hunter  ».  Blount,  27  Ga.,  76;  Hill  r.  Boddie,  2  Stew.  &  P.  Ala.,  56. 


220     Ll ABILITY  OP  PHYSICIANS  AND  SURGEONS 

becomes,  is  that  a  mere  mistake  of  judgment  by  a 
physician  in  the  selection  and  application  of  remedies 
or  appliances  causing  death  does  not  render  him 
criminally  liable.1  The  inadvertent  infliction  of  a 
wound  by  a  physician  on  a  patient,  resulting  in  death, 
does  not  render  him  guilty  either  of  murder  or  man- 
slaughter, where  he  used  the  instrument  [surgeon's 
sound]  commonly  employed  for  like  purposes,  with- 
out evil  intent  or  negligence.2  A  much  more  liberal 
rule  on  the  question  of  the  necessary  skill  of  the  phy- 
sician to  relieve  him  from  criminal  responsibility  for 
results  was  adopted  by  a  number  of  the  early  cases,  it 
being  held  that  if  a  person  assumes  to  act  as  a  physi- 
cian and  prescribes  with  an  honest  intention  of  curing 
the  patient,  the  physician  is  not  guilty  of  manslaughter 
or  murder  in  the  event  of  the  patient's  death  in  conse- 
quence of  the  treatment,  no  matter  however  ignorant 
of  medical  science,  or  the  nature  of  the  disease,  or  of 
the  consequences  of  the  treatment  the  physician 
may  be;3  and  that  to  render  a  person  causing  the 
death  of  another  by  administering  poison  guilty  of 
manslaughter,  where  he  was  ignorant  of  the  poisonous 
character  of  the  drug,  it  must  appear  that  he  was 
giving  the  drug  with  a  wicked  or  evil  purpose.4  The 
later  cases,  however,  seem  to  support  the  rule  that 
an  actual  good  intent  and  the  expectation  of  good 
results  by  a  physician  in  his  treatment  of  a  patient 
are  not  an  absolute  justification  of  his  acts,  however 
foolhardy  they  may  have  been  if  judged  by  an  external 
standard;  and  if  his  act  was  the  result  of  foolhardy 
presumption  or  gross  negligence  he  is  as  responsible 

1  State  v.  Hardister,  38  Ark.,  605. 

2  State  v.  Reynolds,  42  Kan.,  322;  22  Pac.,  410. 

3  State  v.  Schultz,  55  Iowa,  628;  Com.  v.  Thompson,  6  Mass.,  134;  Rice 
v.  State,  8  Mo.,  561;  Robbins  v.  State,  8  Ohio  St.,  138. 

4  Cay  wood  v.  Com.,  7  Ky.  Law  Rep.,  224. 


FOR  GROSS  NEGLIGENCE  OR  LACK  OF  SKILL    221 

for  the  result  as  though  he  had  done  unlawful  acts 
for  independent  reasons.  The  condition  of  the  indi- 
vidual's mind  with  regard  to  the  consequences  must  be 
taken  into  consideration,  as  distinguished  from  mere 
knowledge  of  present  or  past  circumstances  from 
which  others  might  be  led  to  anticipate  or  apprehend 
a  particular  result  from  acts  done.1 

Thus  upon  the  trial,  under  an  indictment  for 
manslaughter,  of  an  irregular  practitioner  for  causing 
the  death  of  a  patient  by  the  application  of  coal  oil 
with  her  consent,  by  covering  her  with  flannels  satu- 
rated with  the  oil  for  two  or  three  days,  the  court  said : 
'The  defendant  publicly  practised  as  a  physician,  and 
being  called  to  attend  a  sick  wroman,  caused  her  with 
her  consent  to  be  kept  in  flannels  saturated  with  coal 
oil  for  three  days,  more  or  less,  by  reason  of  which 
she  died.  He  had  made  similar  applications  with 
favorable  results  in  other  cases,  but  in  one  of  them 
the  effect  had  been  to  blister  and  burn  the  flesh,  as 
in  the  present  case.  His  duty  was  not  enhanced  by 
an  express  or  implied  contract,  but  he  was  bound  at 
his  peril  to  do  no  grossly  reckless  act  when  he  inter- 
meddled with  the  person  of  another  in  the  absence 
of  any  emergency  or  other  exceptional  circumstances. 
The  claim  is  made  that  to  constitute  manslaughter 
the  killing  must  have  been  the  consequence  of  some 
unlawful  act.  If  this  means  that  the  killing  must 
be  the  consequence  of  an  act  which  is  unlawful  for 
independent  reasons,  apart  from  its  likelihood  to  kill, 
it  is  wrong.  Such  may  once  have  been  the  law,  but 
for  a  long  time  it  has  been  just  as  fully  and  latterly, 
we  may  add,  much  more  willingly  recognized  that  a 
man  may  commit  murder  or  manslaughter  by  doing 
otherwise  lawful  acts  recklessly,  just  as  he  may  by 

1  Com.  v.  Pierce,  138  Mass.,  165. 


222      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

doing  acts  unlawful  for  independent  reasons,  from 
which  death  accidentally  ensues.  But  recklessness 
in  the  moral  sense  means  a  certain  state  of  conscious- 
ness with  reference  to  the  consequences  of  an  overt  act. 
It  is  undoubtedly  true,  as  a  general  proposition,  that 
a  man's  liability  for  his  acts  is  determined  by  their 
tendency  under  all  the  circumstances  known  to  him, 
and  not  by  their  tendency  under  all  the  circumstances 
actually  affecting  the  result,  whether  known  or  un- 
known; but  he  cannot  escape  on  the  ground  that  he 
has  had  less  than  common  experience. 

"Common  experience  is  necessary  to  a  man  of 
ordinary  prudence,  and  a  man  assuming  to  act  as  the 
defendant  did  must  have  it  at  his  peril.  Here  he  knew 
he  was  using  coal  oil.  More  than  that,  he  saw  from 
day  to  day  how  it  worked.  It  was  applied  as  the 
result  of  foolhardy  presumption  or  gross  negligence. 
When  he  applied  the  coal  oil  to  the  person  of  the 
deceased  in  a  reckless  way,  or,  in  other  words,  seriously 
and  unreasonably  endangered  her  life  according  to 
common  experience,  he  did  an  act  which  his  patient 
could  not  justify  by  her  consent,  and  which  therefore 
was  an  assault  notwithstanding  that  consent,  and  he 
is  therefore  guilty  of  manslaughter."1 

A  physician  may  be  charged  with  manslaughter  by 
causing  the  death  of  a  sick  child  by  advising  a  diet 
which  results  in  its  starvation,  under  a  statute  which 
treats  all  persons  concerned  in  the  commission  of  an 
offence  as  principals,  although  it  was  the  mother  of  the 
child  who  actually  withheld  the  food  from  it  in  the 
absence  of  the  accused.2 

Likewise  a  physician  is  held  criminally  liable  for 
the  results  of  gross  ignorance  of  the  art  he  assumes 

1  Commonwealth  v.  Pierce,  138  Mass.,  165. 

2  State  v.  McFadden  (Wash.),  93  Pac.,  414. 


FOR  GROSS  NEGLIGENCE  OR  LACK  OF  SKILL    223 

to  practise,  or  of  gross  ignorance  in  the  selection  or 
application  of  remedies,  and  of  gross  negligence  with 
reference  thereto.1  Under  this  rule,  where  poison 
is  knowingly  administered  with  intent  to  accomplish 
some  unlawful  purpose  and  death  ensues,  it  is  murder 
though  the  death  was  not  intended ;  but  manslaughter 
only,  if  it  was  heedlessly  administered  with  no  unlawful 
purpose.2  It  is  the  duty  of  a  physician,  neglect  of 
which  may  render  him  criminally  responsible  for  fatal 
results,  to  direct  as  to  sanitary  conditions  surrounding 
the  patient,  and  the  means  and  manner  of  taking  the 
medicines,  and  whatever  other  applications  and  opera- 
tions are  necessary  to  restoration  of  health.3  The 
consent  of  a  patient  is  not  a  defence  in  a  prosecution 
against  a  surgeon  causing  his  death,  unless  the  opera- 
tion performed  by  the  surgeon  was  done  with  due 
care  and  skill;  consent  is  no  excuse  for  recklessness 
or  want  of  skill.  A  surgeon  cannot  be  convicted  of 
the  crime  of  manslaughter  for  performing  an  opera- 
tion upon  the  deceased  without  his  consent  if  the 
operation  did  not  result  in  his  death.4  The  criminal 
liability  of  a  physician  for  the  death  of  his  patient, 
brought  about  by  his  gross  negligence,  carelessness,  or 
ignorance,  may  be  established  under  an  indictment  or 
information  predicated  upon  general  statutes  denning 
manslaughter.6  A  statutory  provision  that  if  a  physi- 
cian under  certain  conditions  shall,  without  design  to 
effect  death,  administer  any  poison,  drug,  or  medicine, 
or  do  any  other  act  to  another  person  which  shall 
produce  the  latter's  death,  he  shall  be  deemed  guilty 
of  manslaughter,  furnishes  the  rule  of  action  in  the 

1  State  P.  Hardistcr,  38  Ark.,  605;  Hampton  p.  State  (Fla.),  39  So.,  421. 
8  State  P.  Wagner,  78  Mo.,  644. 

*  State  P.  Power,  24  Wash.,  34;  63  Pac.,  1 1 12. 

*  State  P.  Gile,  8  Wash.,  12;  35  Pac.,  417. 

*  Hampton  p.  State  (Fla.),  39  So.,  421. 


224      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

enumerated  cases  only,  and  does  not  prevent  holding 
a  physician  criminally  liable  for  the  unintended  death 
of  his  patient,  brought  about  by  his  gross  negligence 
or  ignorance,  in  cases  other  than  the  enumerated  ones.1 
A  person's  religious  belief  cannot  be  accepted  as  a 
justification  for  his  committing  an  overt  act  made 
criminal  by  the  law  of  the  land.2 

Illustrations  of  Gross  Negligence  and  Lack  of 
Skill. — Under  this  head  I  have  chosen  to  take  the 
liberty  to  set  out  with  more  or  less  detail  the  facts  in 
a  few  of  the  most  interesting  and  most  glaring  cases  of 
dense  ignorance  and  gross  negligence  that  have  been 
reported.  The  first  case  is  the  one  most  familiarly 
known  among  the  legal  profession,  that  of  Common- 
wealth v.  Thompson,  the  defendant  being  Dr.  Thomp- 
son, founder  of  the  Thompsonian  system  of  medicine, 
and  the  prosecution  was  for  murder.  "On  the  trial 
it  appeared  in  evidence  that  the  prisoner,  some  time 
in  the  preceding  December,  came  into  Beverly,  where 
the  deceased  then  lived,  announced  himself  as  a  physi- 
cian, and  professed  ability  to  cure  all  fevers,  whether 
black,  gray,  green,  or  yellow;  declaring  that  the  country 
was  much  imposed  upon  by  physicians,  who  were 
all  wrong,  if  he  was  right.  He  possessed  several 
drugs,  which  he  used  as  medicine,  and  to  which  he 
gave  singular  names.  One  he  called  coffee;  another, 
well-my-gristle;  and  a  third,  ramcats.  He  had  several 
patients  in  Beverly  and  in  Salem  previously  to  Monday, 
January  2,  when  the  deceased,  having  been  for  several 
days  confined  to  his  house  by  a  cold,  requested  that 
the  prisoner  might  be  sent  for  as  a  physician. 

"He  accordingly  came  and  ordered  a  large  fire  to 
be  kindled  to  heat  the  room.     He  then  placed  the  feet 

1  Hampton  v.  State  (Fla.),  39  So.,  421. 

2  Reynolds  v.  United  States,  98  U.  S.,  143. 


FOR  GROSS  NEGLIGENCE  OR  LACK  OF  SKILL    225 

of  the  deceased,  with  his  shoes  off,  on  a  stove  of  hot 
coals  and  wrapped  him  in  a  thick  blanket  covering 
his  head.  In  this  situation  he  gave  him  a  powder  in 
water  which  immediately  puked  him.  Three  minutes 
after  he  repeated  the  dose,  which  in  about  two  minutes 
operated  violently.  He  again  repeated  the  dose,  which 
in  a  short  time  operated  with  more  violence.  These 
doses  were  all  given  within  the  space  of  half  an  hour, 
the  patient  in  the  meantime  drinking  copiously  of  a 
warm  decoction,  called  by  the  prisoner  his  coffee. 
The  deceased,  after  puking,  in  which  he  brought  up 
phlegm  but  no  food,  was  ordered  to  a  warm  bed, 
where  he  lay  in  a  profuse  sweat  all  night.  Tuesday 
morning  the  deceased  left  his  bed  and  appeared  to 
be  comfortable,  complaining  only  of  debility;  and  in 
the  afternoon  he  was  visited  by  the  prisoner,  who 
administered  two  more  of  his  emetic  powders  in  suc- 
cession, which  puked  the  deceased,  who,  during  the 
operation,  drank  of  the  prisoner's  coffee  and  com- 
plained of  much  distress.  On  Wednesday  morning 
the  prisoner  came,  and,  after  causing  the  face  and 
hands  of  the  deceased  to  be  washed  with  rum,  ordered 
him  to  walk  in  the  air,  which  he  did  for  about  fifteen 
minutes.  In  the  afternoon  the  prisoner  gave  him  two 
more  of  his  emetic  powders,  with  draughts  of  his 
coffee.  On  Thursday  the  deceased  appeared  to  be 
comfortable,  but  complained  of  great  debility.  In 
the  afternoon  the  prisoner  caused  him  to  be  sweated, 
by  placing  him,  with  another  patient,  over  an  iron 
pan,  with  vinegar  heated  by  hot  stones  put  into  the 
vinegar,  covering  them  at  the  same  time  with  blankets. 
On  Friday  and  Saturday  the  prisoner  did  not  visit  the 
deceased,  who  appeared  to  be  comfortable,  although 
complaining  of  increased  debility.  On  Sunday  morn- 
ing, the  debility  increasing,  the  prisoner  was  sent  for, 
15 


226      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

and  came  in  the  afternoon  when  he  administered 
another  of  his  emetic  powders  with  his  coffee,  which 
puked  the  deceased,  causing  him  much  distress.  On 
Monday  he  appeared  comfortable,  but  with  increas- 
ing weakness,  until  the  evening,  when  the  prisoner 
visited  him  and  administered  another  of  his  emetic 
powders,  and  in  about  twenty  minutes  repeated  the 
dose.  This  last  dose  did  not  operate.  The  prisoner 
then  administered  pearlash  mixed  with  water,  and 
afterward  repeated  his  emetic  potions.  The  deceased 
appeared  to  be  in  great  distress  and  said  that  he  was 
dying.  The  prisoner  then  asked  him  how  far  the 
medicine  had  got  down.  The  deceased  laying  his 
hand  on  his  breast,  answered  here,  on  which  the 
prisoner  observed  that  the  medicine  would  soon  get 
down  and  unscrew  his  navel,  meaning,  as  was  supposed 
by  the  hearers,  that  it  would  operate  as  a  cathartic. 
Between  9  and  10  o'clock  in  the  evening  the  deceased 
lost  his  reason  and  was  seized  with  convulsion  fits, 
two  men  being  required  to  hold  him  in  bed.  After 
he  was  thus  seized  with  convulsions  the  prisoner  got 
down  his  throat  one  or  two  doses  of  his  emetic  powders, 
and  remarked  to  the  father  of  the  deceased  that  his 
son  had  got  the  hyps  like  the  devil,  but  that  his  medi- 
cine would  fetch  him  down;  meaning,  as  the  witness 
understood,  would  compose  him.  The  next  morning 
the  regular  physicians  of  the  town  were  sent  for, 
but  the  patient  was  so  completely  exhausted  that  no 
relief  could  be  given.  The  convulsions  and  loss  of 
reason  continued,  with  some  intervals,  until  Tuesday 
evening,  when  the  deceased  expired."  The  "coffee" 
proved  to  be  a  decoction  of  marsh  rosemary  and  the 
bark  of  the  bayberry  bush;  the  powder  was  Indian 
tobacco  or  Lobelia  inflata.  The  court  in  this  extra- 
ordinary case  laid  down  the  law  as  follows:  "The 


FOR  GROSS  NEGLIGENCE  OR  LACK  OF  SKILL    227 

death  of  a  man,  killed  by  voluntarily  following  a 
medical  prescription,  cannot  be  adjudged  a  felony 
in  the  party  prescribing,  unless  he,  however  ignorant 
of  medical  science  in  general,  had  so  much  knowledge 
or  probable  information  of  the  fatal  tendency  of  the 
prescription  that  it  may  be  reasonably  presumed  by 
the  jury  to  be  the  effect  of  obstinate,  wilful  rashness 
at  the  least,  and  not  of  an  honest  intention  and  expecta- 
tion to  cure." 

The  case  of  Rice  v.  State  is  much  like  the  preceding. 
The  defendant  in  this  case  was  also  a  botanical  physi- 
cian, and  administered  lobelia  to  a  patient,  who  was 
pregnant  and  lacked  about  six  weeks  of  time  when 
she  expected  to  be  confined,  for  the  purpose  of  curing 
her  of  "sciatica,"  from  the  effects  of  which  a  mis- 
carriage was  brought  on,  resulting  in  the  patient's 
death.  In  delivering  the  opinion,  the  court  said  that 
"if  a  person  assume  to  act  as  a  physician,  however 
ignorant  of  medical  science,  and  prescribe  with  an 
honest  intention  of  curing  the  patient,  but  through 
ignorance  of  the  quality  of  the  medicine  prescribed 
or  the  nature  of  the  disease,  or  both,  the  patient  died 
in  consequence  of  the  treatment,  contrary  to  the 
expectation  of  the  person  prescribing,  he  is  not  guilty 
of  murder  or  manslaughter.  But  if  the  party  pre- 
scribing have  so  much  knowledge  of  the  fatal  tendency 
of  the  prescription  that  it  may  be  reasonably  presumed 
that  he  administered  the  medicine  from  an  obstinate, 
wilful  rashness,  and  not  with  an  honest  intention 
and  expectation  of  effecting  a  cure,  he  is  guilty  of 
manslaughter  at  least,  though  he  might  not  have 
intended  any  bodily  harm."  Thus  applying  the  old 
rule  and  the  same  one  used  in  Com.  v.  Thompson.1 

Another  case  in   this   relation   is  that   of  State  9. 

>  Rice  r.  State,  8  Mo.,  561. 


228      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

Schulz,  which  arose  in  Iowa.  Schulz  treated  a  sick 
woman  by  acupuncture  and  an  irritating  oil,  accord- 
ing to  the  system  of  Herr  Baunscheidt,  who  having 
been  much  benefited  by  the  biting  of  small  insects, 
sought  to  give  the  world,  for  a  consideration,  a  simu- 
lacrum of  his  experience.  Defendant  admitted  that 
he  did  not  know  the  composition  of  the  oil,  that 
being  Baunscheidt's  secret.  The  patient  died.  Schulz 
claimed  that  if  he  had  not  been  interfered  with  he  could 
have  helped  her,  and  produced  twenty-three  witnesses 
to  testify  that  Baunscheidtismus,  as  administered  by 
him,  had  benefited  them.  Schulz  was  not  held  guilty 
by  the  higher  court,  who  following  the  cases  of  Thomp- 
son and  Rice,  held  that  the  interests  of  society  will 
be  subserved  by  holding  a  physician  civilly  liable  in 
damages  for  the  consequences  of  his  ignorance  with- 
out imposing  upon  him  criminally  liabilities  when  he 
acted  with  good  .motives  and  honest  intentions.1 

It  has  been  held  that  where  a  physician,  attending 
a  female  sick  with  bilious  fever,  and  five  months 
advanced  in  pregnancy,  gave  her  no  strong  medicine, 
or  did  any  act  to  bring  about  a  miscarriage,  and  she 
was  taken  in  labor,  which  proved  ineffectual  until 
the  fetus  was  removed  by  force,  and  she  afterward 
died  from  puerperal  fever,  not  induced  by  anything 
done  or  omitted  to  be  done  by  the  physician,  a  con- 
viction of  him  for  manslaughter  cannot  be  sustained. 
The  court  in  considering  the  criminal  responsibility 
of  the  accused  said:  "He  may  not  have  acted  with 
either  the  best  judgment  or  even  the  ordinary  skill. 
But  no  unprejudiced  person  can  read  the  evidence 
without  being  convinced  that  he  acted  with  good 
motives,  and  the  evidence  wholly  fails  to  show  that 
the  puerperal  fever,  of  which  the  patient  died,  was 

1  State  v.  Schulz,  55  Iowa,  628. 


FOR  GROSS  NEGLIGENCE  OR  LACK  OF  SKILL    229 

caused  by  anything  done  or  omitted  to  be  done  by 
the  accused.  If  physicians  and  surgeons  can  be  con- 
victed of  manslaughter  and  sent  to  the  penitentiary 
upon  such  evidence  as  this  record  contains,  there 
would  be  witnessed  a  frightful  devastation  in  their 
ranks."1 

In  the  case  of  State  v.  Hardister  and  Brown,  the 
facts  as  set  out  in  the  indictment  were  substantially 
these:  That  the  accused  held  himself  out  as  a  physi- 
cian and  obstetrician,  and  that  he  was  called  on  a 
certain  day  to  attend  a  lady  who  was  about  to  be 
confined,  and  administered  to  her,  while  in  the  pains 
of  childbirth,  an  unnecessarily  large  quantity  of  mor- 
phine, by  reason  of  which  the  pains  were  retarded; 
that  he  then  administered  to  her  large  and  excessive 
quantities  of  fluid  extract  of  ergot,  by  reason  of  which 
the  patient  was  thrown  into  convulsions,  and  there- 
upon he  bled  the  patient  in  the  arm;  that  he  then 
carelessly  attempted  to  deliver  the  child  by  the  use 
of  forceps,  by  repeatedly  introducing  them  without 
due  caution,  causing  inflammation  and  fever;  that 
he  then  carelessly  administered  large  and  excessive 
quantities  of  chloroform,  and  then  without  due  care 
and  circumspection,  with  a  pocket-knife,  did  cut, 
puncture,  and  wound  the  said  quick  child  in  the  head, 
thereby  killing  the  child;  that  he  then  inserted  his 
fingers  into  the  mouth  of  the  child  and  forced  its 
head  out  of  the  mouth  of  the  vagina,  and  then  tied 
a  rope  around  the  neck  of  the  child  and,  without 
due  caution,  pulled  and  delivered  the  child  by  force 
and  violence,  and  that  without  delivering  the  after- 
birth he  abandoned  the  patient,  who  died  from  the 
effects  in  a  few  days.  It  is  refreshing  to  say,  however, 
that  in  this  case  the  supreme  court  held  that  when 

1  Honnard  ».  State,  77  111.,  481. 


230      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

death  is  caused  by  gross  ignorance  in  the  selection  or 
application  of  remedies,  by  one  grossly  ignorant  of  the 
art  he  assumes  to  practise,  he  is  criminally  liable.1 

3.  FOR  THE  PROCUREMENT  OF  ABORTIONS 

(a)  Abortion  Defined. — Abortion  is  the  act  of  mis- 
carrying or  producing  young  before  the  actual   time 
and  before  the  fetus  is  perfectly  formed;  and  to  cause 
or   procure   an   abortion   is   to   cause  or   procure   this 
premature  bringing  forth  of  the  fetus.2     Miscarriage 
and   abortion,    in    their   legal    and    popular   sense,  are 
generally   held   to   be  synonymous.3     There   are   also 
cases  where  the  terms  "miscarriage"  and  "abortion" 
were  not  held  to  be  synonymous.4     Feticide5  is  also 
sometimes  used  as  synonymous  with  criminal  abortion. 

(b)  Abortion  as  a  Crime. — This  is  to  be  found  only 
in    modern    treatises    and    in    modern    statutes.      No 
trace  of  it  is   to  be    found    in    the   ancient  common 
law  writers.6     In  many  of  the  States  the  procurement 
of  an  abortion  with  the  consent  of  the  mother  before 
the  child  became  quick  was  not  at  common  law  con- 
sidered a  criminal  act.     In  other  States  it  has  been 
held  that  it  is  not  the  murder  of  the  living  child  which 
constitutes  the  offence  of  procuring  an  abortion,  but 
the  destruction   of   gestation    by   wicked    means   and 
against  nature.     The   moment  the  womb  is   instinct 

1  State  v.  Hardister,  38  Ark.,  605. 

2  Abrams  v.  Foshee,  Ala.,  278;  Butler  v.  Wood,  10  How.  Pr.  (N.  Y.),  222; 
Belt  v.  Spaulding,  17  Or.,  130;  20  Pac.,  827. 

3  State  v.  Crook,  16  Utah,  212;  51  Pac.,  1091;  State  v.  Fleetwood  (Del.), 
65  Atl.,  772;  De  Pew  v.  Robinson,  95  Ind.,  in;  State  v.  Crofford,  133  la., 
478;  no  N.  W.;  Munk  v.  Frink,  75  Nebr.,  172;  106  N.  W.,  425. 

4  Weightnovel  v.  State,  46  Fla.,  i;  State  v.  Belya,  9  N.  D.,  353;  83  N.  W., 
i;  People  v.  Aiken,  66  Mich.,  484;  33  N.  W.,  821;  Florien  v.  State,  8  Ohio, 
C.  D.,  171. 

6  Sullivan  v.  State,  121  Ga.,  183;  48  S.  E.,  949. 
•  State  v.  Cooper,  22  N.  J.  L.,  52,  55. 


FOR  THE  PROCUREMENT  OF  ABORTIONS        231 

with  embryo  life,  and  gestation  has  begun,  the  crime 
may  be  perpetrated.  If  this  were  not  so  it  would 
be  practically  impossible  to  convict  an  abortionist 
for  any  abortion,  or  attempted  abortion,  during  the 
first  five  months  of  pregnancy;  for  if  gestation  had 
not  proceeded  to  the  period  of  quickening  there 
would  be  no  way  of  disputing  the  testimony  of  the 
abortionist  that  what  he  removed  was  in  fact  a  dead 
fetus.1  As  stated  by  the  Supreme  Court  of  Pennsyl- 
vania: "It  is  a  flagrant  crime  at  common  law  to 
attempt  to  procure  the  miscarriage  or  abortion  of 
the  woman,  because  it  interferes  with  and  violates 
the  mysteries  of  nature  in  that  process  by  which  the 
human  race  is  propagated  and  continued.  It  is  a 
crime  against  nature,  which  obstructs  the  fountain 
of  life,  and  therefore  it  is  punished."2  This  question 
is  now  regulated  by  statutes  in  the  several  States 
which  specify  what  acts  shall  constitute  the  crime.  In 
the  majority  of  the  States  these  statutes  fail  to  draw 
any  distinction  between  the  commission  of  the  offence 
or  attempt  at  commission  before  and  after  the  quick- 
ening of  the  child.  Some  jurisdictions,  however,  still 
make  a  distinction  by  providing  a  more  severe  punish- 
ment when  the  act  or  attempt  is  committed  after 
quickening. 

(c)  Pregnancy  as  Element  of  the  Offence. — Preg- 
nancy is  the  state  of  being  with  child  and  designates 
the  condition  of  'a  woman  from  the  time  of  concep- 
tion until  she  has  been  delivered  of  the  child.3  It 
has  been  held  that  pregnancy  ceases  even  when  the 
child  which  has  been  brought  forth  is  still  attached 
to  the  umbilical  cord.4 

1  Munk  r.  Prink,  Nebr.,  116  N.  W.,  525;  State  P.  Slagle,  83   N.  C.,  630; 
Mills  v.  Com.,  13  Perm.,  633. 

*  Mills  v.  Com.,  13  Pa.,  632.  *  State  ».  Howard,  32  Vt.,  380. 

4  Com.  v.  Brown,  14  Gray  (Mass.),  419. 


232      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

(d)  Malice  as  Element  of  the   Offence. — Malice  is 
not  an   element  of  the  offence,1   though   it   has  been 
defined  by  statute  as  doing  the  forbidden  act  mali- 
ciously.2 

(e)  Means     Employed. — (i)    In     General.  -  -  In     a 
majority  of  States  it  is  not  necessary  that  the  thing 
administered     should     actually     produce     the     effect 
desired,3  or  that  it  should  have  qualities  efficient  to 
produce  that  result,4  though  some  courts  have  held 
otherwise.5    The  testimony  of  a  physician  is  sufficient 
to  show  that  the  means  are  capable  of  producing  an 
abortion.6 

(2)  Administering  Drugs. — The  word  "administer" 
includes  to  "give,  furnish,  supply,  provide  with,  or 
cause  to  be  given,  furnished,  supplied,  or  provided 
with,  or  taken  any  such  drug,  medicine,  or  substance," 
and  every  mode  of  "giving,  furnishing,  supplying, 
providing  with,  or  causing  to  be  taken  any  such  drug, 
medicine,  or  substance."7  Giving  a  drug  to  a  person 
is  administering  within  the  intent  of  the  Delaware 
statute.8  Sending  a  drug  by  mail  to  be  taken  by  the  re- 
ceiver to  procure  abortion  is  an  administering  thereof 
within  the  intent  of  the  Iowa  statute.  There  seems 
to  be  a  conflict  as  to  whether  the  means  administered 
or  advised  to  be  used  need  to  be  actually  used  in 
order  to  constitute  the  offence.  It  has  been  held  in 

1  State  v.  Belyea,  9  N.  D.,  353;  83  N.  W.,  i. 

2  Com.  v.  Wood,  n  Gray,  85;  Com.  v.  Morrison,  16  Gray,  224;  State  v. 
Murphy,  27  N.  J.  L.,  112. 

3  See  the  statutes  in  the  several  States. 

4  State  v.  Owens,  22  Minn.,  238. 

6  Fretwell  v.  State,  43  Tex.  Grim.,  507;  67  S.  W.,  1021;  Cave  v.  State,  33 
Tex.  Crim.,  335;  26  S.  W.,  503. 

*  Cave  v.  State,  33  Tex.  Crim.,  335;  26  S.  W.,  503. 

7  Caughey  v.  State,  156  Ind.,  41;  59  N.  E.,  169. 

8  State  v.  Jones,  4  Penn.  (Del.),  109;  53  Atl.,  858. 


FOR  THE  PROCUREMENT  OF  ABORTIONS        233 

several  States  that  they  need  not  be  actually  used 
to  complete  the  offence.1 

(3)  Noxious    Drugs. — At  common  law,  and   under 
some  statutes  making  it  an  offence  to  administer  any 
noxious  drug  or  other  thing  to  procure  an  abortion, 
it  is  essential  that  the  drug  should  be  of  a  noxious 
character.2 

A  drug  to  be  "noxious  and  destructive"  need  not 
be  poisonous.  It  is  sufficient  if  it  would  so  operate 
on  the  general  system  as  to  probably  occasion  injury 
or  derangement  to  a  pregnant  woman  and  make 
miscarriage  possible,  if  there  is  an  intent  to  produce 
a  miscarriage.  So  it  has  been  held  that  boneset 
administered  with  such  intent  comes  within  the  mean- 
ing of  the  statute  even  though  it  has  no  quality  to 
produce  abortion.3  A  small  quantity  of  savin,  which 
was  sufficient  only  to  produce  a  little  disturbance  of 
the  stomach,  has  been  held  not  to  be  a  noxious  thing. 

(4)  Efficiency   of   Means. — The   actual    miscarriage 
of  a  woman  in  some  States  is  an  essential  element 
of  the  crime.4  but  in  the  majority  of  the  States  it  is 
not  essential   to  the  consummation  of  the  statutory 
offence,  the  consequence  not  being  held  material.5 

(5)  Violent    Assault   and   Immoderate    Exercise. — A 
statute    forbidding    the    use    of   any    instrument    "or 
other  means"  to  procure  an  abortion  includes  a  violent 

1  Eggart  0.  State,  40  Fla.,  527;  25  So.,  144;  State  v.  Moothart,  109  la.,  130; 
80  N.  W.,  301;  State  v.  Murphy,  27  N.  J.  L.,  112. 

1  State  v.  Gedricke,  43  N.  J.  L.,  86;  State  ».  Crews,  128  N.  C.,  581 ;  38  S.  E., 
293;  State  P.  Slagle,  82  N.  C.,  633. 

1  Dougherty  v.  People,  i  Colo.,  514. 

4  Illinois — Scott  v.  People,  141  111.,  195;  30  N.  E.,  329.  Indiana — Hauk 
v.  State,  148  Ind.,  238;  46  N.  E.,  127.  Ohio — State  r.  Barker,  28  Ohio  St.,  583. 

4  Colorado — Dougherty  P.  People,  I  Colo.,  514.  Delaware — State  v.  Magnell, 
3  Perm.,  307;  51  Atl.,  606.  Iowa — Stater.  Moothart,  109  la.,  130;  80  N.  W., 
301.  Massachusetts — Com.  v.  Taylor,  132  Mass.,  261.  New  Jersey — State 
».  Gedicke,  43  N.  J.  L.,  86.  Pennsylvania — Com.  v.  W.  M.  W.,  3  Pittsb.,  463. 
Texas— Willingham  v.  State,  33  Tex.  Crim.,  98. 


234      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

assault,  consisting  of  a  kick  in  the  abdomen;  on  a 
woman  between  five  and  six  months  advanced  in 
pregnancy,  where  the  kick  was  made  with  the  inten- 
tion of  causing  her  to  miscarry,  and  where  it  in  fact 
did  cause  her  to  miscarry.1  It  has  been  held  that  the 
procurement  of  a  pregnant  woman  to  engage  in  im- 
moderate and  excessive  exercise  with  the  intent  to 
bring  about  a  miscarriage  is  an  offence  within  the 
statute.2 

(/)  Liability  as  Principals. — Under  the  statutes, 
any  person  who  unlawfully  supplies,  administers  to, 
prescribes  for,  or  advises  or  causes  to  be  taken  by  a 
pregnant  woman  any  drug,  poison,  substance,  or  any 
thing,  or  unlawfully  uses  or  causes  to  be  used  any 
instrument  or  other  means  whatever,  with  intent  to 
cause  or  procure  an  abortion,  is  a  principal. 

(g)  Liability  as  Accessories  and  Accomplices. — Any 
person  who  in  any  manner  aids,  abets,  or  assists  the 
woman  or  any  other  person  to  procure  an  abortion 
is  an  accessory  or  accomplice.3  All  parties  concerned 
in  the  offence  are  responsible,  whatever  may  be  the 
part  they  take. 

(h)  Defence  to  Prosecution  for  Procuring  Abortion. 
— (i)  In  General. — The  general  rule  is  that  no  fact  or 
circumstance  which  is  not  excepted  by  the  statute  is 
available  as  a  defence.  So  it  is  not  a  defence  to  such 
prosecution  that  the  defendant  did  the  act  charged 
with  the  consent  or  at  the  request  of  the  woman.4 

(2)  Justification  for  Procuring  an  Abortion. — The 
statutes  of  the  several  States,  in  making  it  a  crime 

1  Navarro  v.  State,  24  Tex.  App.,  378;  6  S.  W.,  542. 

2  Com.  v.  W.  M.  W.,  3  Pittsb.  (Pa.),  463. 

3  See  statutes  of  the  several  States. 

4  Connecticut — State  v.  Carey,  76  Conn.,  342.    Delaware — State  v.  Magnell, 
3  Penn.,  307.     Iowa — State  v.  Moore,  25  la.,  128.     Massachusetts — Com.  v. 
Snow,  116  Mass.,  47.     Michigan — People  v.  Abbott,  116  Mich.,  263.     Wis- 
consin— Miller  v.  Bayer,  94  Wis.,  123. 


FOR  THE  PROCUREMENT  OF  ABORTIONS        2,35 

to  procure  an  abortion,  expressly  except  those  cases 
in  which  the  abortion  may  be  necessary  to  preserve 
the  life  of  the  mother,  or  shall  have  been  advised  by 
a  specified  number  of  physicians  to  be  necessary  for 
such  statutory  provision  the  fact  that  the  mother's 
life  requires  that  a  miscarriage  be  performed  upon 
her  is  always  a  justification  for  producing  abortion, 
whether  the  statute  expressly  so  provides  or  not. 
If  a  physician  seeks  to  justify  his  act  of  procuring  an 
abortion  on  the  ground  that  it  was  necessary  to  save 
life,  without  obtaining  the  advice  of  the  number  of 
physicians  required  by  the  statute,  he  must  prove 
that  the  necessity  did  in  fact  exist.  And  it  has  been 
held  that  evidence  showing  that  a  physician  operated 
with  a  knife  upon  the  womb  of  a  healthy  woman, 
aged  nineteen  years,  and  a  few  days  afterward  she 
was  delivered  of  a  partly  grown  child,  and  was  imme- 
diately attacked  with  peritonitis,  of  which  she  died, 
raises  an  inference  that  it  was  unnecessary  to  destroy 
the  child  in  order  to  preserve  the  life  of  the  mother; 
and  the  fact  that  the  woman  had  threatened  to  commit 
suicide  unless  relieved  from  her  child  does  not  show 
such  a  necessity.1 

It  has  been  held  to  be  no  defence  to  an  indictment 
under  a  statute  requiring  the  advise  of  two  physicians 
as  to  the  necessity  of  performing  the  act  to  save  life, 
that  one  of  the  defendants,  who  was  a  physician, 
thought  the  operation  to  be  necessary  to  save  the 
life  of  the  mother,  if  the  evidence  shows  that  it  was 
in  fact  unnecessary.2 

1  Necessity  to  Save  Life  as  Defence. — State  r.  Lee,  69  Conn.,  186;  37  All.,  75; 
Honnard  v.  People,  77  111.,  48;  Worthington  v.  State,  92  Md.,  222;  48  Atl., 
355;  Com.  v.  Brown,  12 1  Mass.,  69;  State  ».  Fitzporter,  93  Mo.,  390;  6  S. 
W.,  223;  State  v.  Clements,  15  Or.,  237;  14  Pac.,  410;  Stater.  Rupe,  41 
Tex.,  33. 

1  Hatchard  ».  State,  79  Wis.,  357. 


236      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

(3)  Alibi  as  Defence. — If  the  physician  or  surgeon 
charged   with   the   offence   of   procuring  an    abortion 
can  prove  that  he  was  at  another  place  than  that  at 
which  the  crime  was  alleged  to  have  been  committed 
at  the  time  of  the  performance  of  the  criminal  act, 
this  will  be  a  good  defence  unless  the  jury  are  satisfied 
that  the  prosecution  was  in  error  as  to  the  date  stated 
by  them.     As  was  said  by  the  court  in  Com.  v.  Snow, 
116  Mass.,  47:    "  If  the  alibi  was  satisfactorily  proved, 
it  was  for  the  jury  to  say  what  effect  it  ought  to  have 
upon  the  testimony  of  the  witness  for  the  prosecu- 
tion.    It  might  discredit  them  altogether.     If  it  did 
not  have  that  effect,  then  it  required  an  inference  of 
some  mistake  on  their  part,  either  as  to  the  person 
who  performed  the  operation,  or  the  true  date  of  its 
performance.     Their  testimony  was  no  more  positive 
as  to  the  date  than  it  was  as  to  the  person;  and  they 
were  at  least  quite  as  liable  to  make  a  mistake  as  to 
the  true  date  as  they  were  in  regard  to  the  identity 
of  the  person.     But  in  any  respect  it  was  entirely  a 
question  of  fact  for  the  jury,  and  was  rightly  left  to 
them  to  decide." 

(4)  Consent  of  Woman. — Consent  of  the  woman  to 
the  procurement  of  an  abortion  is  no  defence.1 

(5)  Dead  Fetus  as  Defence. — A  woman  who  carries 
a  fetus  in  her  womb  is  pregnant  whether  the  fetus 
is  living  or  dead,   and   the  fact   that   the   fetus  was 
dead  at  the  time  of  the  unlawful  act  is  no  defence. 
This  does  not  apply,  however,  to  cases  where  a  physi- 
cian performs  an  operation  to  remove  a  dead  fetus.2 

(6)  Former  Acquittal. — A   plea  of  former  acquittal 
may  be   a  bar  to  another  prosecution    for    procuring 
an  abortion.3 

1  Smith  v.  State,  33  Me.,  48. 

-  Honnard  i;.  State,  77  111.,  483;  State  ».  Howard,  32  Vt.,  380. 

3  State  v.  Crook,  16  Utah,  212. 


FOR  THE  PROCUREMENT  OF  ABORTIONS         237 

(i)  Mode  of  Trial  in  Abortion  Cases. — A  trial  for 
homicide  resulting  from  an  attempt  to  produce  the 
miscarriage  of  a  pregnant  woman  is  conducted,  as 
a  general  rule,  in  all  respects  as  is  required  where  a 
criminal  is  on  trial  for  homicide  by  killing  in  some 
other  manner.1  So  a  verdict  for  manslaughter  may 
be  returned  in  a  prosecution  for  murder  under  a  statute 
declaring  an  attempt  to  produce  an  abortion  which 
causes  the  death  of  a  woman  shall  be  murder,  as  well 
as  in  the  case  of  an  indictment  for  any  other  kind 
of  murder.2 

(J)  Evidence  in  Abortion  Cases. — (i)  In  General.— 
As  a  general  proposition  the  State  must  prove: 

1.  That  the  defendant  wilfully  prescribed  or  admin- 
istered to  a  certain  woman  a  medicine,  drug,  or  sub- 
stance, or  used  upon  her  an  instrument  or  means. 

2.  The   name  of  the  medicine,  drug,  or  substance 
prescribed  or  administered,  or  the  name  of  the  instru- 
ment or  the  means,  if  known,  should  be  alleged  and 
proved. 

3.  That  the  woman  was  pregnant  at  the  time  the 
medicine    was    prescribed    or    administered,    or    the 
instrument  or  means  used.     The  stage  of  the  preg- 
nancy   being    immaterial.      It    may    be   at   any    time 
between  conception   and  delivery. 

4.  That    the    medicine,    drug,    or    substance    was 
prescribed    or    administered,    or    the    instrument    or 
means  used,  on  the  part  of  the  defendant  with  the 
intent  to  procure  a  miscarriage  of  the  woman. 

5.  That  such  miscarriage,  or  means  to  procure  it, 
was  not  necessary  to  preserve  the  life  of  the  woman. 

6.  That  such  miscarriage,  or  means  to  procure  it, 
had  not  been  advised  by  at  least  two  physicians  to  be 
necessary  to  preserve  the  life  of  the  woman. 

1  Earll  v.  People,  73  111.,  329. 

1  State  p.  Alcorn,  7  Idaho,  599,  64  Pac.,  1014. 


238      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

(2}  Proof  of  Opportunities  and  Facilities. — As  tend- 
ing to  establish  both  the  crime  and  the  intent  with 
which  it  was  committed,  it  is  proper  to  introduce  any 
proper  evidence  which  will  tend  to  prove  or  prove 
either  the  opportunity  to  commit  the  crime  or  the 
facilities  with  which  it  might  have  been  committed. 
Thus  it  has  been  held  competent  to  put  in  evidence 
the  "speculum  chair,"  and  other  surgical  instruments 
adapted  for  use  in  producing  abortion,  found  in  the 
possession  of  the  defendant,  for  the  same  reason  that, 
upon  a  trial  for  burglary,  implements  of  burglary 
found  in  the  defendant's  possession  are  admissible. 
They  tend  to  show  that  defendant  had  the  means 
and  opportunity  to  commit  the  offence  charged. 
It  is  clearly  competent  for  medical  experts  to  testify 
that  the  instruments  found  were  adapted  to  produce 
abortion,  that  being  a  matter  within  the  special  expe- 
rience of  experts.1  Knitting  needles  and  bottles  con- 
taining ergot,  found  in  the  possession  of  the  accused, 
have  been  held  admissible  where  there  is  evidence 
that  such  ergot  and  such  instruments  are  sometimes 
used  to  produce  abortion.2 

It  is  also  competent  for  the  prosecution  to  show 
a  willingness  on  the  part  of  the  accused  to  perform 
the  criminal  act.  Thus  it  was  held  proper  in  the 
prosecution  of  a  physician  for  a  crime  of  this  kind  to 
admit  in  evidence  a  circular  which  read  as  follows: 
"Dr.  -  -'s  female  regulator;  married  ladies  should 
not  take  it.  For  reference  apply  at  this  office.  Office 
hours  from  8  to  n  A.M.,  and  from  I  to  5  P.M." 

"A  card,  -  -  Dr.  -  -  would  respectfully  announce 
to  the  ladies  of  S —  —  and  vicinity  that  he  is  at  all  times 
ready  and  happy  to  have  a  social  consultation  upon 

1  Com.  v.  Brown,,i2i  Mass.,  69;  Com.  v.  Blair,  126  Mass.,  40. 
»  State  v,  Barnes  (N.  J.),  68  Atl.,  145. 


FOR  THE  PROCUREMENT  OF  ABORTIONS         239 

all  matters  relating  to  pregnancy  or  confinement,  or 
in  regard  to  lawful  production  of  a  premature  birth, 
which,  in  all  proper  cases,  he  will  produce  in  a  skilful 
manner,  guarantee  an  easy  time,  and  speedy  recovery. 
For  the  information  of  all  I  insert  the  statute  in  refer- 
ence to  the  unlawful  production  of  premature  birth, 
which  is  as  follows,  to  wit:  'Every  woman  who  shall 
solicit  of  any  person  any  medicine,  drug,  or  substance, 
or  anything  whatsoever,  and  shall  take  the  same,  or 
shall  submit  to  any  operation  or  other  means  whatso- 
ever, with  intent  thereby  to  procure  a  miscarriage, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall, 
upon  conviction,  be  punished  by  imprisonment  in  the 
county  jail  not  less  than  three  months  nor  more  than 
one  year,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  by  both  such  fine  and  imprisonment.  2 
R.  S.,  694,  Sec.  2i.' 

"It  is  a  well-settled  rule  of  law  that  a  person 
cannot  be  compelled,  under  any  circumstances,  to 
answer  a  question  where  the  answer  would  convict 
or  tend  to  convict  the  person  of  a  crime.  Ladies, 
your  secrets  are  with  yourselves,  and  yourselves 
alone,  whether  in  the  street,  at  your  home,  or  as 
a  witness,  and  you  need  answer  no  question  when 
the  answer  would  in  any  way  tend  to  harm  you, 
as  stated  above,  or  to  make  you  liable  under  this 
statute  to  a  criminal  action.  And,  ladies,  should  you 
ever  require  legal  assistance  in  any  of  these  matters, 
of  course,  employ  such  counsel  as  you  think  proper; 
but  if  you  are  not  pecuniarily  able,  or  too  delicate 
to  act  in  the  matter,  notify  me,  and  I  will  protect 
you  at  my  own  expense. 

(SIGNED)       "Dr.— 

«c NY" 

+j         ,  11 .   i . 


240      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

Justice  Miller  in  commenting  upon  the  competency 
of  this  very  extraordinary  circular  said:  "The  circular 
was,  I  think,  competent  as  a  declaration  of  the  prisoner 
that  he  made  a  specialty  of  this  business  and  was  versed 
and  skilled  in  regard  to  it.  It  corroborated  the  proof 
introduced  upon  the  trial,  and  was  a  statement  of 
himself  to  the  effect  that  he  made  it  a  part  of  his 
business  to  attend  to  cases  of  this  kind.  With  evidence 
that  an  abortion  had  been  procured  while  deceased 
was  under  the  prisoner's  charge,  his  own  advertisement 
that  he  was  ready  to  perform  operations  of  such  a 
character  certainly  tended  to  strengthen  the  testimony 
already  introduced,  and  was  clearly  admissible."1 
Evidence  that  the  accused  had,  before  the  commis- 
sion of  the  alleged  abortion,  told  other  persons  that 
he  had  instruments  wherewith  to  produce  abortion, 
and  offered  his  services  for  that  purpose  at  a  certain 
price,  is  admissible  to  show  possession  of  the  necessary 
means  to  accomplish  the  act  in  the  chosen  way  of  the 
accused.2 

(3)  Corroborative  Proof. — Under  some  statutes  there 
can  be  no  conviction  unless  the  woman  on  whom  the 
operation  was  alleged  to  have  been  produced  is  corrob- 
orated by  other  testimony  or  circumstances.  The  rule 
in  this,  as  in  other  such  cases,  is  that  she  must  be 
corroborated  on  every  essential  element  of  the  crime. 
And  as  the  intent  is  not  an  essential  element,  but  the 
gist  of  the  offence,  she  must  be  corroborated  in  this 
particular.  As  stated  by  one  court:  "She  must  also 
have  been  corroborated  by  circumstances,  or  other- 
wise, in  at  least  some  portion  of  her  testimony  which 
imputes  to  the  defendant  the  commission  of  the  crime 
alleged,  to  wit,  in  the  use  of  an  instrument  with  intent 

1  Weed  v.  People,  3  Thomp.  &  C.,  50. 

2  People  v.  Sessions,  26  N.  W.  Rep.,  291. 


241 

to  procure  an  abortion."1  Under  a  statute  which 
provided  that  a  conviction  should  not  be  had  on  the 
evidence  of  an  accomplice  in  the  absence  of  corrobora- 
tive proof,  it  was  held  in  a  case  where  the  husband 
occupied  the  position  as  accomplice  in  causing  the 
death  of  his  wife  by  consenting  to  an  abortion,  that 
the  dying  declarations  of  the  wife  supporting  the 
statements  of  the  husband  were  sufficient  corrobora- 
tive proof  to  sustain  a  conviction.2  But  where  the 
record  does  not  affirmatively  show  that  there  was 
no  corroborative  evidence,  and  where  it  does  not 
purport  to  contain  all  the  evidence  upon  that  point, 
the  presumption  of  law  is  that  there  was  sufficient 
competent  evidence  to  support  the  verdict.3 

(4)  Proof  of  Intent. — Acts  and  letters  of  the  defend- 
ant implicating  him  in  the  intent  to  bring  about  a 
woman's  abortion  may  be  proved  against  him.  Intent 
may  be  inferred  from  the  character  of  the  means 
employed,  and  may  be  presumed  if  the  statutory 
ingredients  of  the  crime  are  shown.4  To  prove  intent 
it  is  admissible  to  show  a  subsequent  attempt  to 
accomplish  the  same  purpose  by  different  means,5 
and  to  prove  that  ergot,  a  drug  shown  to  have  been 
administered  to  the  deceased,  was  popularly  supposed 
to  produce  abortion.6  Testimony  as  to  the  physical 
condition  of  the  woman  after  the  time  of  the  alleged 
operation  is  admissible7  even  though  ten  days  have 
elapsed  since  the  performance  of  the  alleged  act,8 
and  evidence  of  the  health  and  spirits  of  the  patient 

1  People  v.  Josselyn,  39  Cal.,  393. 
1  State  v.  Pearce,  56  Minn.,  226;  57  N.  W.,  652. 
1  State  v.  Owens,  22  Minn.,  238. 

4  Scott  v.  People,  141  111.,  195;  State  v.  Moothart,  109  la.,  130;  80  N.  W., 
301. 
*  Lamb  v.  State,  66  Md.,  285.  «  Carter  p.  State,  2  Ind.,  617. 

7  Com.  v.  Wood,  ii  Gray  (Mass.),  85;  People  v.  Olmstead,  30  Mich.,  431. 

8  Com.  v.  Follansbee,  155  Mass.,  274. 

16 


242      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

and  of  stains  and  marks  upon  the  bed  and  clothing 
a  month  afterward  has  been  held  admissible,  though 
the  length  of  time  may  affect  the  weight  of  such 
evidence.1  Evidence  of  a  conversation  between  the 
defendant  and  a  witness  two  or  three  years  before 
the  time  of  the  act,  when  the  defendant  asked  for 
information  as  to  how  abortions  might  be  procured, 
is  not  admissible,  as  it  is  too  remote.2 

(5)  Dying  Declarations. — Dying  declarations  are 
statements  of  material  facts  concerning  the  cause 
and  circumstances  of  a  homicide,  made  by  the  victim 
under  a  solemn  conviction  of  impending  death.3  In 
order  that  the  declarations  of  a  deceased  person  may 
be  admissible  under  the  dying  declarations  rule, 
the  declarant  must  at  the  time  of  making  them  have 
been  in  extremis  and  fully  conscious  of  his  impending 
dissolution.  Both  of  these  conditions  must  exist.4 

Greenleaf  says:  "It  is  the  impression  of  almost 
immediate  dissolution,  and  not  the  rapid  succession 
of  death  in  point  of  fact,  that  renders  the  testimony 
admissible.  Therefore,  where  it  appears  that  the 
deceased,  at  the  time  of  the  declaration,  had  any 
expectation  or  hope  of  recovery,  however  slight  it 
may  have  been,  and  though  death  actually  ensued  an 
hour  afterward,  the  declaration  is  inadmissible. 

"On  the  other  hand,  a  belief  that  he  will  not  recover 
is  not  in  itself  sufficient,  unless  there  be  also  the 
prospect  of  almost  immediate  dissolution."5 

The  reason  for  excepting  dying  declarations  from 
the  rule  against  hearsay  evidence  is  that  the  solemnity 
of  the  circumstances  under  which  such  declarations 

1  Com.  v.  Wood,  n  Gray  (Mass.),  85. 

2  Com.  v.  Hersey,  2  Allen  (Mass.),  173. 

3  Westbrook  v.  People,  126  111.,  82. 

4  Young  v.  State,  99  Ala.,  181;  Jones  v.  State,  71  Ind.,  73. 

5  Greenleaf  on  Evidence,  Sec.,  158. 


FOR  THE  PROCUREMENT  OF  ABORTIONS         243 

are  made  naturally  constitutes  a  guaranty  of  their 
truth  equal  to  that  which  is  afforded  by  the  customary 
oath.1  Since  dying  declarations  are  admissible  only 
in  homicide  cases,  it  follows,  as  a  general  rule,  that 
dying  declarations  are  admissible  in  prosecutions 
for  abortions  when,  and  only  when,  the  death  of  the 
woman  is  an  ingredient  of  the  offence,  so  as  to  be 
involved  in  the  charge.2  They  are  not  admissible 
where  the  statutes  which  define  and  prescribe  a  punish- 
ment for  abortion  do  not  make  the  death  of  the  woman 
one  of  the  constituent  elements  of  the  offence.3  Where, 
however,  the  statutes  provide  for  the  punishment  of 
abortions  resulting  in  death,  the  woman's  dying  declara- 
tions have  been  admitted  on  the  theory  that  the  death 
is  an  essential  ingredient  of  the  offence,  and  the  subject 
of  the  charge.4  In  some  jurisdictions  the  dying  declara- 
tions of  the  woman  have  by  the  express  terms  of  the 
statutes  been  made  admissible  in  prosecutions  for 
abortions.5  A  prosecution  for  homicide  committed 
by  performing  an  abortion  is  not  properly  a  prosecu- 
tion for  abortion,  but  for  homicide,  and  the  dying' 
declarations  of  the  woman  as  to  the  abortion  are 
admissible.6 

Dying  declarations  are  not  rendered  inadmissible 
in  the  prosecution  of  an  indictment  committed  in  an 
attempt  to  commit  an  abortion,  upon  the  theory  that 
in  prosecutions  for  abortion  the  death  of  the  woman 
is  no  part  of  the  facts  which  go  to  constitute  the 
crime,  and  not  a  constituent  element  of  the  offense, 

1  Mitchell  v.  State,  71  Ga.,  128. 

*  Montgomery  v.  State,  80  Ind.,  338;  Railing  v.  Com.,  no  Pa.,  100. 

*  Com.  v.  Homer,  153  Mass.,  343;  People  v.  Davis,  56  N.  Y.,  95;  Railing  r. 
Com.,  no  Pa.,  100. 

*  Montgomery  v.  State,  80  Ind.,  338. 

*  Com.  P.  Thompson,  159  Mass.,  56;  Maine  v.  People,  9  Hun.  (N.  Y.),  113. 

*  Simons  p.  People,  450  111.,  66;  State  P.  Dickinson,  41  Wis.,  299. 


244      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

where  the  indictment  is  not  for  the  statutory  crime 
but  for  homicide.1  A  dying  declaration  by  a  woman, 
"Dr.  Mame  operated  on  me,"  is  not  an  expression 
of  an  opinion,  but  the  statement  of  a  fact  peculiarly 
within  her  knowledge,  which  is  admissible  in  evidence 
in  a  prosecution  for  causing  her  death  in  an  attempt 
to  procure  an  abortion.2  Statements  made  by  a  woman 
when  about  to  die  from  the  effects  of  an  abortion: 
"He  is  the  cause  of  my  death.  Oh,  those  horrible 
instruments!"  are  not  admissible  as  dying  declara- 
tions in  a  prosecution  for  murder  in  the  commission 
of  abortion,  since  such  declarations  did  not  necessarily 
refer  to  any  attempt  to  produce  an  abortion.3 

(6)  Declarations  of  Mother. — Declarations  of  the 
deceased  woman  not  part  of  the  res  gestae  and  not 
dying  declarations  are  inadmissible  in  prosecutions 
for  procuring  or  attempting  to  procure  abortion.4 
Thus  a  statement  by  the  deceased  woman  a  day 
before  her  death  that  "the  doctor  had  used  instru- 
ments upon  her"  was  inadmissible,  because  it  was 
not  a  dying  declaration.5  Likewise,  statements  of  the 
deceased  woman  that  she  had  been  at  the  defendant's 
house  for  two  weeks,  had  come  there  to  be  treated 
by  him,  and  a  week  after  her  arrival  had  had  a  mis- 
carriage, are  inadmissible.6  Statements  and  letters 
and  conduct  of  the  woman  which  are  so  closely  con- 
nected with  the  acts  alleged  as  to  be  part  of  the  res 
gestse  are  admissible.7  By  the  term  "res  gestae"  is 
meant  "the  facts  surrounding  or  accompanying  a 

1  Smith  v.  State,  33  Me.,  48. 

2  Maine  v.  People,  9  Hun.,  113. 

3  State  v.  Baldwin,  79  Iowa,  714;  45  N.  W.,  297. 

4  Hauk  v.  State,  148  Ind.,  238;  47  N.  E.,  465;  State  v.  Young,  55  Kan., 
349;  40  Pac.,  659;  State  v.  Wood,  53  N.  H.,  484. 

8  State  v.  Clements,  15  Or.,  237;  14  Pac.,  410. 

6  Weigh tnovel  v.  State,  46  Fla.,  i :  35  So.,  856. 

7  State  v.  Ryder,  80  Vt.,  422;  68  Atl.,  652;  State  v.  Dickinson,  41  Wis.,  299. 


1'VR  THE  PROCUREMENT  OF  ABORTIONS        LM.1 

transaction  which  is  the  subject  of  legal  proceedings. 
The  phrase  is  chiefly  used  in  the  law  of  evidence, 
the  rule  being  that  evidence  of  words  used  by  a 
person  may  be  admissible  (notwithstanding  the  gen- 
eral rule  against  derivative  evidence)  on  the  ground 
that  they  form  part  of  the  res  gestae,  provided  that 
the  act  which  they  accompanied  is  itself  admissible  in 
evidence  and  that  they  reflect  light  upon  or  qualify 
that  act.1 

It  has  been  held  that  declarations  of  the  deceased 
woman,  as  to  the  purpose  of  a  journey  which  she  took 
to  the  house  of  the  defendant,  were  properly  admitted 
as  part  of  the  res  gestae.  'The  mere  act  of  going  was 
equivocal;  it  might  have  been  for  professional  advice 
and  assistance.  The  declarations  were  of  the  same 
force  as  the  act  of  going,  and  were  admissible  as  part 
of  the  act."2 

So,  too,  where  a  woman  conspires  with  others  to 
procure  an  abortion  on  herself,  on  proof  of  the  con- 
spiracy, her  acts  and  declarations,  in  furtherance 
thereof,  are  admissible  in  evidence  against  the  co- 
conspirators.  For  example:  The  declarations  of  a 
woman  dying  in  consequence  of  an  abortion  performed 
on  her,  she  having  conspired  with  a  physician  to  have 
the  operation  performed,  are  admissible  in  evidence 
against  the  physician  on  his  trial  for  murder  as  a 
result  of  the  abortion,  so  far  as  they  relate  to  the 
conspiracy.3  The  woman  on  whom  the  abortion  has 
been  performed  is  a  competent  witness  against  the 
physician,  even  though  she  be  regarded  as  an  accom- 
plice.4 Declarations  and  exclamations  indicative  of 
pain  or  suffering,  made  by  the  woman  in  her  last 

1  Rapalje  and  Lawrence's  Law  Diet. 

1  State  v.  Howard,  32  Vt.,  380. 

1  State  v.  Crofford,  133  la.,  478:  no  N.  W.,  921. 

4  Com.  v.  Follansbee,  155  Mass.,  274. 


246      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

illness,  and  not  referring  to  the  past,  are  competent 
evidence.1  Thus  declarations  of  a  deceased  woman, 
soon  after  her  arrival  at  the  house  where  the  abortion 
was  performed,  are  admissible  as  to  her  feelings  and 
state  of  health,  if  material,  but  the  rejection  of  imma- 
terial declarations  of  this  kind,  as  where  the  question 
was  not  raised  whether  the  physician  acted  profes- 
sionally in  good  faith  in  what  he  did,  is  not  ground 
for  the  granting  of  a  new  trial.2 

For  Maintaining  House  for  Practising  Abortion. — 
Maintaining  a  house  for  the  purpose  of  practising 
the  vocation  of  an  abortionist  constitutes  a  public 
nuisance,3  within  the  meaning  of  the  New  York 
statutes. 


4.  FOR  SALE   OF  INTOXICATING  LIQUORS 

A  physician  has  a  legal  right  to  administer  intoxicat- 
ing liquors  to  his  patients,  and  the  numerous  statutes 
on  the  subject  of  intoxicating  liquors  have  seldom 
attempted  to  prevent  him  from  so  doing,  even  in 
prohibition  States.4  If  the  physician  buys  the  liquor 
for  his  patient  and  turns  it  over  to  him,  in  pursuance 
of  a  prescription  he  has  given  him,  he  commits  no 
offence.5  In  several  jurisdictions  it  has  been  held 
that  a  physician  cannot  sell  liquor  to  his  patients 
nor  put  it  in  prescriptions  unless  he  has  a  permit  to 
sell  liquor.6  In  one  State,  where  the  statute  made  no 

1  Rhodes  v.  State,  128  Ind.,  189. 

2  State  v.  Howard,  32  Vt.,  380. 

3  People  v.  Hoffman,  189  N.  Y.,  561;  82  N.  E.,  1130. 

4  State  f.  Wilson,  71  Kan.,  263;  80  Pac.,  565;  Sarris  v.  Com.,  83  Ky.,  327; 
State  v.  Larimore,  19  Mo.,  391;  Walker  v.  State  (Tex.),  64  S.  W.,  1052. 

6  Key  v.  State,  37  Tex.  Cr.  App.,  77,  38  S.  W.,  773. 

6  Colorado — Braisted  v.  People,  38  Colo.,  49,  88  Pac.,  150.  Iowa — State 
v.  Benadone,  79  Iowa,  90,  44  N.  W.,  218.  Kansas — State  v.  Fleming,  32  Kan., 
588,  5  Pac.,  19.  Nebraska — Holt  ».  State,  62  Nebr.,  134,  86  N.  W.,  1073. 


ILLEGALLY  PRESCRIBING  INTOXICATING  LIQUORS  247 

exception  as  to  physicians,  it  was  held  that  a  physician 
could  not  furnish  liquor  to  his  patient  as  a  medicine, 
though  he  acted  in  the  utmost  good  faith.1  In  Georgia, 
a  medical  preparation  containing  sufficient  alcohol 
to  render  its  sale  without  a  license  unlawful,  is  not 
justified  by  the  fact  that  it  is  sold  as  a  medicine.2 
Where  a  physician  may  administer  liquor  to  a 
patient  he  must  act  in  the  utmost  good  faith.  He 
cannot  use  his  professional  power  as  a  means  of  furnish- 
ing liquors  as  a  beverage,  or  to  one  who  does  not  need 
it.  In  one  case  where  a  physician  gave  a  prescrip- 
tion for  a  quart  of  whisky,  which  was  filled  at  a  drug 
store  owned  by  a  partnership  of  which  he  was  a 
member,  the  sale  was  held  illegal.3  The  physician  must 
make  the  sale  as  a  physician,  and  reasonably  believe 
that  the  patient  needs  it,  and  not  upon  the  suggestion 
of  the  patient  that  he  needs  it.4  A  statute  is  valid  that 
casts  upon  the  physician  the  burden  of  showing  that 
the  condition  of  the  patient  reasonably  demanded  the 
use  of  intoxicating  liquors.6 


5.  FOR   ILLEGALLY   PRESCRIBING   INTOXICATING 
LIQUORS 

In  one  or  two  States  statutes  prohibit  a  physician 
giving  a  prescription  for  liquor  when  the  person  to 
whom  it  is  given  does  not  actually  need  the  liquor. 
If  the  physician  believes  in  good  faith  that  the  patient 
needs  the  liquor  he  may  prescribe  for  him,6  though  it 

1  Carson  v.  State,  69  Ala.,  235;  Thomason  v.  State,  70  Ala.,  20. 

1  Chapman  v.  State,  100  Ga.,  311. 

1  Brinson  v.  State,  89  Ala.,  105;  8  So.,  527. 

4  State  v.  Cloughly,  73  Iowa,  626;  35  N.  W.,  652. 

•  Commonwealth  ».  Minor,  88  Ky.,  422,  II  S.  W.,  472. 

•  Ibid.,  118  W.,  472. 


248      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

turns  out  he  was  purposely  deceived  by  the  patient 
in  order  to  obtain  the  liquor.1 

To  show  that  the  physician  did  not  act  in  good 
faith,  evidence  of  the  number  of  prescriptions  he 
has  given  to  other  persons  within  a  reasonable  limited 
period  of  time  when  the  particular  prescription  was 
legally  given  may  be  introduced  for  the  purpose  of 
showing  an  intent  on  his  part  to  violate  the  law.2 

A  statute  casting  upon  the  physician  the  burden 
to  show  that  the  patient  actually  needed  the  liquor 
is  constitutional.3  A  statute  prohibiting  a  physician 
giving  a  prescription  in  a  prohibition  county  to  one 
not  actually  ill,  has  no  reference  to  a  physician  writing 
a  prescription  for  himself.4  In  Illinois  it  was  held 
that  an  ordinance  forbidding  a  physician  to  give  a 
patient  a  prescription  for  liquor  when  he  really  did 
not  need  it  was  authorized,  and  neither  unreasonable, 
oppressive,  nor  an  unjust  discrimination  against  the 
physicians  as  a  class.6 

A  physician  cannot  be  indicted  in  a  prosecution 
for  giving  an  illegal  prescription  for  an  illegal  sale  of 
intoxicating  liquors,  for  by  giving  the  prescription 
he  does  not  make  a  sale.  The  charge  must  be  for 
giving  an  illegal  prescription,  or  a  prescription  to  a 
person  who  could  not  otherwise  obtain  it,  and  such 
allegations  must  be  used  as  will  show  that  it  was 
illegally  issued.6  The  prescription  should  be  described 
in  such  a  manner  that  the  court  can,  by  inspection, 
pronounce  whether  it  was  such  an  instrument  as 

1  Commonwealth  v.  Williams,  120  Ky.,  314;  86  S.  W.,  553;  People  v.  Hinch- 
man,  75  Mich.,  587;  Walker  v.  State  (Tex.),  64  S.  W.,  1052. 

2  State  v.  Atkinson,  33  S.  C.,  100;  n  S.  E.,  93. 

3  Commonwealth  v.  Minor,  88  Ky.,  422;  n  S.  W.,  412. 

4  Hawk  v.  People,  44  Tex.  Cr.  App.,  560;  72  S.  W.,  842. 
6  Carthage  v.  Buckner,  4  111.  App.,  317. 

6  Williams  v.  State  (Tex.  Cr.  App.),  81  S.  W.,  1209. 


FOR  ILLEGAL  USE  OF  ANESTHETICS  249 

supports  the  offence  charged.1  Whether  or  not  a 
prescription  was  given  in  good  faith  is  a  question  for 
the  jury.2 

A  physician  who  assists  one  to  purchase  liquor  for 
himself,  by  giving  him  an  illegal  prescription,  thereby 
becomes  an  accomplice  of  the  seller  and  is  guilty  of 
assisting  or  making  the  sale.3 

6.  FOR   PRESCRIBING   OR  ADMINISTERING   WHILE 
INTOXICATED 

The  legislatures  of  several  States  have  expressly 
provided  that  a  physician  who  administers  while 
intoxicated  a  poisonous  drug  or  medicine  which  results 
in  death  is  guilty  of  manslaughter;  others  have  passed 
laws  making  it  a  crime  for  one  to  practise  as  a  physician 
while  intoxicated.4 

7.  FOR  ILLEGAL  USE   OF  ANESTHETICS 

Because  of  the  seeming  reality  of  dreams  occasioned 
by  narcotics  and  their  tendency  to  remain  permanently 
fixed  in  the  memory,  with  all  the  vividness  of  actual 
events,  as  well  as  for  the  protection  of  the  patient, 
statutes  have  been  passed  in  several  States  declaring 
it  to  be  a  crime  to  "use  upon  another  an  anesthetic 
unless  at  administration,  and  during  the  whole  time 
the  person  is  wholly  or  partly  under  the  direct  influ- 
ence of  it,  there  is  present  a  third  person  competent 
to  be  a  witness."5 

1  McAllister  v.  State,  47  So.,  161. 

1  Rowe  P.  Commonwealth,  24  Ky.  L.  Rep.,  974;  70  S.  W.,  407. 

»  McLain  v.  State,  43  Tex.  Cr.  App.,  213;  64  S.  W.,  865. 

4  See  the  statutes  of  California,  Idaho,  Indiana,  Florida,  Michigan,  Minne- 
sota, Missouri,  Montana,  Nebraska,  New  Mexico,  New  York,  North  Dakota, 
Ohio,  Oregon,  South  Dakota,  Utah,  Wisconsin,  and  Wyoming. 

s  See  the  statutes  of  the  several  States. 


250      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 


8.  FOR   OBTAINING   MONEY  UNDER  FALSE  PRETENCE 

A  false  pretence  is  such  a  fradulent  representation 
of  an  existing  past  fact  by  one  who  knows  it  not  to  be 
true  as  is  adapted  to  induce  the  person  to  whom  it  is 
made  to  part  with  something  of  value.  The  word 
"pretence"  has  been  defined  to  be  a  "false  argument, 
grounded  on  fictitious  postulates,"  which  is  clearly 
something  more  than  a  naked  lie,  the  falsehood  of 
which  the  person  to  whom  it  is  uttered  can  detect 
at  the  moment  by  the  immediate  application  of  a 
test.  In  false  pretences  the  money  is  obtained  with 
the  consent  of  the  owner;  the  latter  intended  to  part 
with  it,  for  if  it  deprives  him  only  of  his  money  it  is  a 
theft.  To  sum  it  all  up  then,  the  offence  of  obtaining 
money  under  false  pretence  consists  of:  (i)  A  false 
representation  as  to  an  existing  fact.  (2)  An  intent  to 
defraud.  (3)  A  reliance  upon  such  fraudulent  repre- 
sentation. (4)  Something  of  value  obtained  thereby. 

It  has  been  held  by  the  United  States  Supreme 
Court,  Mr.  Justice  White  and  Mr.  Justice  McKenna 
dissenting,  that  a  school  of  magnetic  healing  is  not 
making  a  fraudulent  use  of  the  mails  by  sending  its 
advertising  matter  through  the  mails.  Its  business 
was  advertised  as  being  founded  "almost  exclusively 
on  the  physical  and  practical  proposition  that  the 
mind  of  the  human  race  is  largely  responsible  for  its 
ills,  and  is  a  perceptible  factor  in  the  healing,  curing, 
benefiting,  and  remedying  thereof,  and  that  the 
human  race  is  largely  responsible  for  its  ills,  and  is 
a  perceptible  factor  in  the  healing,  curing,  benefiting, 
and  remedying  thereof,  and  that  the  human  race  is 
largely  responsible  for  its  ills,  and  is  a  perceptible 
factor  in  the  healing,  curing,  benefiting,  and  remedy- 


OBTAINING  MONEY  UNDER  FALSE  PRETENCE    251 

ing  thereof,  and  that  the  human  race  does  possess 
the  innate  power  through  proper  exercise  of  the 
faculty  of  the  brain  and  mind  largely  to  control  and 
remedy  the  ills  that  humanity  is  heir  to,  and  they 
discard  and  eliminate  from  their  treatment  what  is 
commonly  known  as  Christian  Science,  and  they  are 
confined  to  practical  scientific  treatment  emanating 
from  the  source  aforesaid."1 

The  testimony  of  the  prosecuting  witness  in  a  Mary- 
land case  for  obtaining  money  under  false  pretence 
was  as  follows:  "On  Monday  I  went  to  see  him 
[the  accused]  at  the  Eutaw  House.  I  told  the  professor 
I  wanted  to  see  him,  as  I  was  sick  for  some  time.  The 
professor  offered  me  paper,  and  told  me  to  write  my 
name  and  age  upon  it,  and  not  to  let  him  see  what 
I  wrote.  I  wrote  my  name  and  age  on  the  paper, 
and  he  walked  up  and  down  the  room  and  looked  out 
of  the  window,  and  took  the  paper,  folded  it  up,  and 
placed  it  against  his  forehead,  and  then  told  me  what 
I  had  written  on  the  paper.  He  said :  'You  suffer  from 
stomach  trouble,  and  I  can  and  will  cure  you  within 
six  weeks;  if  not,  I  will  return  you  your  money.'  He 
said:  'At  the  end  of  six  weeks,  if  not  cured,  I  will  return 
you  the  money.'  I  asked  him  when  I  should  call 
again,  and  he  said:  '  Don't  come;  I  will  come  and  see 
you  and  work  on  you  four  hours,  and  after  that  you 
will  be  well.'  He  also  gave  me  a  charm  to  wear.  I 
wore  it  around  my  neck  for  one  hour.  He  said,  to 
wear  it  was  essential  to  the  treatment.  I  am  not 
over  the  stomach  trouble  yet.  He  never  came  to 
my  house  and  worked  on  me.  I  paid  him  twenty-six 
dollars  and  thirty  cents."1 

1  School  of  Magnetic  Healing  ».  McAnnulty,  187  U.  S.,  94. 
*  Jules  ».  State,  85  Md.,  305 


252      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 


9.  FOR  SENDING  OBSCENE  LITERATURE  IN  THE  MAILS 

A  physician  may  communicate,  through  the  mails, 
to  his  patient  in  terms  that  would  otherwise  be 
obscene,  but  before  he  can  do  this  the  relation  of 
patient  and  physician  must  exist.  Matter  is  said  to 
be  obscene  when  its  tendency  is  to  excite  libidinous 
thoughts  and  desires  or  to  corrupt  and  deprave  those 
whose  minds  are  open  to  such  immoral  influences 
and  into  whose  hands  it  may  fall.1  Persons  publish- 
ing books  necessary  for  medical  instruction  may  be 
liable  for  uttering  obscene  libels  if  the  effect  is  to 
debauch  society  or  to  make  money  by  pandering  to 
lascivious  curiosity.  That  the  object  is  philanthropic 
or  scientific  is  no  defence.2 

Thus  where  the  matter  complained  of  was  first  a 
small  pamphlet  in  paper  cover,  entitled  "Dr.  Clarke's 
Treatise  on  Venereal,  Sexual,  Nervous,  and  Special  Dis- 
eases," and  consisted  mainly  of  a  description  of  the 
causes  and  effects  of  venereal  diseases;  and  secondly, 
of  two  circulars,  one  of  which  described,  in  separate 
paragraphs,  the  symptoms  of  various  venereal  diseases, 
and  the  other  contained  a  list  of  questions  to  be 
answered,  the  court  said:  "  In  judging  of  the  tendency 
of  the  publication  to  deprave  and  corrupt  the  mind, 
or  to  excite  lustful  or  sensual  desires,  you  should  con- 
sider the  effect  that  the  publications  would  have  on 
the  minds  of  that  class  of  persons  whom  the  statute 
aims  to  protect,  and  the  liability  of  the  publications 
to  get  into  the  hands  of  that  class  of  persons  rather 
than  the  effect  such  class  of  persons  would  have  on 
people  of  a  high  order  of  intelligence  and  those  who 

1  Swearingen  v.  U.  S.,  161  U.  S.,  446. 

2  Com.  v.  Landis,  8  Phila.,  453. 


FOR  OBSCENE  ADVERTISEMENT  253 

have  reached  mature  years,  who,  by  reason  of  their 
intelligence  or  years,  are  steeled  against  such  influ- 
ences." 

10.  FOR  OBSCENE  ADVERTISEMENT 

An  advertisement  offering  to  cure  venereal  diseases 
by  describing  their  symptoms  in  an  inoffensive  way 
is  not  obscene.  For  example:  "An  extraordinary 
medical  announcement,  free  examination  and  diag- 
nosticating of  any  deep-seated  disease  of  man  .  .  . 
specific  blood  poison. 

"  It  is  well  that  all  men  should  know  the  conse- 
quences if  the  disease  is  imperfectly  treated.  The 
gravest  of  these  is  specific,  vital,  contracted  blood 
poison,  the  disease  that  is  first  manifested  by  a  stub- 
born sore,  later  by  a  rash  on  the  body,  then  by  the 
breaking  out  of  ulcers,  swelling  of  the  glands,  falling 
out  of  the  hair  and  eyebrows.  You  cannot  mistake 
these  symptoms. 

"If  you  find  yourself  in  the  clutches  of  blood  poison, 
don't  waste  time  and  money  on  hot-spring  baths, 
specifics,  mercury,  potash,  or  other  mineral  mixtures 
and  poisons  that  will  give  only  temporary  relief. 

"Dr.  King's  cure  for  blood  poison,  originated  and 
perfected  by  him,  is  absolutely  safe,  rapid,  and  per- 
manent, and  leaves  no  injurious  effects.  Under  his 
treatment  every  external  symptom  soon  disappears, 
while  the  blood,  the  nerve  fibers,  the  bones,  and  the 
whole  system  are  cleansed,  strengthened,  and  restored 
to  perfect  health  and  purity." 

"Nervo-vital   Debility." 

"Cerebral — when  the  mental  forces  are  impaired. 
Spinal — when  the  spinal  centres  are  involved  and 
motor  power  is  diminished.  Vital — when  the  great 


254      LIABILITY  OF  PHYSICIANS  AND  SURGEONS 

sympathetic  nerve  system  is  affected  and  the  forces 
that  govern  the  organs  of  life  are  reduced  by  the 
baneful  reflex  effects  of  diseases  incident  to  the  organs 
of  the  pelvis." 

"Private  Diseases." 

"Newly  contracted  and  chronic  diseases  are  cured 
by  Dr.  King.  He  relieves  all  burning  and  itching  and 
stops  inflammation  and  unnatural  weakness  in  twenty- 
four  hours;  he  effects  cures  in  seven  days."1 

A  municipal  corporation  cannot,  under  charter 
authority  to  regulate  doctors  and  provide  for  the 
general  welfare,  forbid  the  publication  of  advertise- 
ments of  relief  for  venereal  and  private  diseases.2 

ii.  FOR  PRACTISING   DENTISTRY 

In  the  absence  of  any  legislative  declaration  to  the 
contrary,  a  certificate  authorizing  the  holder  to  prac- 
tise medicine  and  surgery  will  authorize  him  to  practise 
dentistry,  but  a  person  who  is  licensed  to  practise 
medicine  and  surgery  under  the  statutes  of  Minnesota 
cannot  by  virtue  thereof  practise  dentistry  without 
securing  a  license  as  a  dentist.3  On  the  other  hand, 
the  definitions  in  some  statutes  of  "practice  of  medi- 
cine" are  broad  enough  to  include  the  practice  of 
dentistry. 

12.  FOR   FAILURE   TO   FILE   CERTIFICATES   OF   BIRTHS 
AND   DEATHS 

The  statutes  of  a  great  many  States  provide  that 
physicians  must  make  certain  reports  with  certain 

1  St.  Louis  v.  King  (Mo.),  126  S.  W.,  495. 

2  Ibid. 

3  State  v.  Taylor,  106  Minn.,  218. 


FOR  FAILURE  TO  FILE  CERTIFICATES  255 

registrars  of  all  births  and  deaths.  These  statutes 
have  been  unconstitutional  where  the  legislature  has 
not  provided  a  fee  therefor.  A  physician  has  been 
held  not  to  be  wilfully  negligent  in  failing  to  file  a 
certificate  of  birth  as  the  statute  commanded,  where 
he  has  made  a  voluntary  effort  to  perform  his  duty 
by  making  certificate  upon  the  blanks  which  had 
been  supplied  him  by  the  public  officer,  and  the 
offer  to  comply  with  new  regulations,  implied  by 
his  request  that  new  blanks,  therefore,  be  sent  him, 
together  with  other  circumstances,  make  plain  that 
there  was  mere  inadvertent  omission  of  a  required 
act  in  the  sincere  attempt  to  perform  his  duty  as  he 
understood  it.1 

1  Brown  t;.  State,  137  Wis.,  543. 


CHAPTER  VIII 

EXEMPTIONS  OF  PHYSICIANS  AND 
SURGEONS 

1.  EXEMPTION   FROM   JURY  DUTY 

THE  statutes  of  most  of  the  States  contain  provi- 
sions expressly  excusing  physicians  and  surgeons 
from  serving  on  juries.  The  exemption  in  such  cases 
operates  as  a  privilege  and  not  as  a  disqualification, 
and  if  a  physician  who  has  been  drawn  on  the  jury 
chooses  to  serve  he  cannot  be  rejected  by  the  parties 
to  the  suit  merely  because  of  his  exemption. 

In  absence  of  statute  expressly  exempting  physi- 
cians and  surgeons  from  serving  upon  juries  they  are 
liable  to  such  service  unless  they  are  held  to  come 
within  some  other  class  of  persons  who  are  exempt. 
These  statutes  have  been  enacted  not  for  the  benefit 
of  the  physician  as  an  individual,  but  on  account  of 
the  exigency  of  their  employment  and  for  the  public 
benefit.1  In  Missouri2  it  has  been  held  that  such 
a  statute  does  not  exempt  a  dentist  from  jury  duty. 

2.  EXEMPTION   FROM   EXECUTION 

Physicians  and  surgeons  are  not  entitled  to  the 
benefit  of  exemption  laws  using  the  term  "  mechanic" 
or  the  term  ' 'laborer."  And  a  debt  due  for  profes- 
sional services  of  a  physician  is  not  a  "claim  for 

1  See  the  statutes  of  the  several  States. 

2  State  v.  Fisher,  nq  Mo.,  344. 


EXEMPTION  FROM  EXECUTION  257 

labor."1  On  the  contrary,  however,  if  the  statute 
is  general,  as  where  the  term  "debtors"  is  used,  with- 
out specifying  the  occupation,  they  are  entitled  to 
the  benefit  of  the  law.  Thus  under  a  statute  exempt- 
ing the  earnings  of  a  "debtor"  for  personal  services 
a  physician  may  claim  as  exempt  money  due  him  for 
professional  services.2  In  several  States  the  legisla- 
tures have  enacted  statutes  applying  in  express  terms 
to  physicians.  The  purpose  of  statutes  exempting 
from  execution  the  books,  instruments,  etc.,  of  physi- 
cians and  surgeons  is  to  secure  the  necessaries  of  life- 
food,  shelter,  and  raiment — to  families  who  are  depend- 
ent upon  heads  thereof  by  securing  to  them  the  instru- 
ments and  means  by  the  use  of  which  they  are  enabled 
to  support  their  families.  Some  courts  have  gone  so 
far  as  to  construe  the  word  "trade"  in  exemption 
statutes  to  include  physicians  and  surgeons.3  The 
library  of  a  professional  man  has  been  held  not  to 
be  exempt  after  he  has  abandoned  his  profession.4 
The  proceeds  of  a  policy  of  insurance  on  the  books 
and  instruments  of  a  physician  which  are  by  statute 
exempt  from  sale  under  execution  for  his  debts  are 
also  exempt.5  A  physician's  buggy,  wagon,  and 
harness  have  been  held  to  be  "tools  of  his  occupation" 
within  the  meaning  of  the  exemption  law.6  Likewise 
the  instruments  of  a  surgeon  have  been  held  exempt 
as  his  tools.7 

Under  the  Iowa  statute  which  exempts  the  horse 
or  team,  consisting  of  not  more  than  two  horses,  by 
the  use  of  which  any  physician  habitually  earned  his 

1  Weymouth  ».  Sanborn,  43  N.  H.,  171. 
1  McCoy  v.  Cornell,  40  Iowa,  457. 
1  Whitcomb  v.  Reid,  31  Miss.,  567. 

*  Cooper  v.  Pierce,  74  Tex.,  526. 

*  Reynolds  &  Churchill  v.  Hanes,  83  la.,  342. 

*  Richards  v.  Hubbard,  59  N.  H.,  158. 
7  Robinson's  Case,  3  Abb.  Pr.,  466. 

17 


258     EXEMPTIONS  OF  PHYSICIANS  AND  SURGEONS 

living,  it  has  been  held  that  a  physician  is  entitled 
to  claim  as  exempt  two  horses,  if,  by  their  use,  he 
habitually  earned  his  living;  and  this  he  could  do 
whether  he  drove  them  together  or  not.1  To  entitle 
him  to  a  buggy,  "by  the  use  of  which  he  habitually 
earns  his  living,"  it  is  not  necessary  that  at  the  time 
of  procuring  it  he  intended  so  to  use  it;  but  it  is  enough 
if  at  the  time  of  seizure  he  was  actually  so  using  it.2 
The  horse  of  a  country  physician  whose  patients 
reside  at  too  great  distance  to  visit  on  foot  has  been 
held  to  be  a  "necessary  team"  within  the  exemption 
statutes.3 

1  Corp.  f.  Griswold,  27  Iowa,  379. 

2  Fames  v.  Turner,  i  Iowa,  53. 

3  Wheeler  v.  Cropsey,  5  How.  Pr.  (N.  Y.),  288. 


CHAPTER  IX 
PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

i.  COMPETENCY  OF  PHYSICIANS   TO  TESTIFY  AS 
EXPERTS 

(a)  In  General. — Physicians  and  surgeons  are  experts, 
and  their  opinions  are  admissible  in  evidence  upon 
questions  that  are  strictly  legitimate  and  embraced 
in  their  profession  and  practice.  As  persons  are  pre- 
sumed to  understand  questions  appertaining  to  their 
own  profession.1 

The  question  of  the  competency  of  a  witness  to 
testify  as  an  expert  is  one  exclusively  for  the  court* 
and  all  the  evidence  as  to  his  competency  should  be 
received  and  considered  by  the  court  before  permitting 
the  witness  to  testify.  His  decision  is,  of  course,  rever- 
sible by  an  appellate  court,2  but  it  will  not  generally 
be  reversed  unless  clearly  wrong.3  Thus  the  opinions 
of  medical  experts  have  been  held  admissible  as  to 
the  permanency  of  a  person's  loss  of  vision;4  as  to  the 
curability  of  a  disease,  the  nature  and  cause  of  which 
he  has  described;5  as  to  the  condition  of  the  body  of 
the  deceased  as  to  fulness  or  paucity  of  blood;6  as 
to  whether  fright  would  produce  heart  trouble;7  and 

1  Dephur  v.  State,  44  Ala.,  24;  Missouri  Pacific  R.  R.  Co.  v.  Finley,  38  Kan., 
550;  State  v.  Clark,  15  S.  C.,  403,  408;  Hathaway  v.  Nat.  Life  Ins.  Co..  48 
Vt.,  335,  351. 

•  State  ».  Cole,  63  Iowa,  695;  17  N.  W.,  183. 
1  Green  v.  State,  64  Ark.,  523;  43  S.  W.,  973. 

4  Finney  v.  New  Jersey  Steam  Boat  Co.,  12  Abb.  Pr.  (N.  S.),  I. 

•  Matteson  v.  New  York,  etc.,  R.  R.  Co.,  35  N.  Y.,  487. 

•  O'Mara  v.  Com.,  75  Pa.,  424. 

1  Illinois  Central  R.  Co.  v.  Latimer,  21  N.  E.,  7. 


260    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

whether  a  child  would  have  been  born  alive  if  it  had 
received  medical  assistance  in  time.1 

A  medical  expert  can  always  testify  concerning 
the  nature  and  extent  of  an  injury;2  and  as  to  whether 
a  certain  wound  given  on  the  chest  endangered  life;3 
whether  a  certain  injury  was  likely  to  produce  or  be 
followed  by  certain  diseases;4  and  as  to  the  manner 
in  which  prolapsus  uteri  would  be  caused,  and  the 
degree  of  violence  that  would  produce  it. 

They  have  been  allowed  to  testify  as  to  what  indi- 
cations would  have  been  found  on  the  postmortem 
examination  of  a  body  taken  from  the  water,  if  the 
person  had  been  suffocated  first  and  then  had  fallen 
into  the  water.5  But  the  opinion  of  medical  experts 
will  not  be  received  as  to  facts  within  the  common 
experience  of  men.  Thus  it  has  been  held  that  a 
medical  expert  who  had  testified  as  to  the  injury 
of  the  plaintiff's  fingers  being  very  severe — that  the 
fingers  were  badly  mashed — that  the  middle  finger 
was  quite  stiff,  and  forefinger  permanently  stiff- 
could  not  answer  the  following  questions: 

"I  will  ask  you  to  state  to  what  extent  the  injury 
impairs  the  usefulness  of  that  hand  for  any  skilled 
occupation,  or  any  occupation  requiring  a  quick  and 
ready  use  of  the  hand  ? 

"State  the  degree  to  which  the  usefulness  of  that 
hand  would  be  impaired  for  skilled  labor,  requiring 
a  quick  and  ready  use  of  the  fingers,  such  as  coupling 
and  breaking  cars  on  the  railroad?"6 

'That  a  physician  could  not  testify  as  to  the  possi- 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.,  507. 

2  Evansville,  etc.,  R.  Co.  v.  Crist,  116  Ind.,  446. 

3  Rumsey  v.  People,  19  N.  Y.,  41. 

4  Kelley  v.  Telegraph  Co.,  34  Minn.,  321. 

5  Young  v.  Makepeace,  103  Mass.,  50. 

6  Kline  v.  K.  C.,  St.  J.  &  C.  B.  R.  Co.,  50  la.,  655. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS  261 

bility  of  a  rape  having  been  committed  in  a  particular 
manner,  described  by  the  prosecutrix.  No  peculiar 
knowledge  of  the  human  system  was  necessary  to 
answer  it.  It  was  a  mere  question  of  relative  strength 
or  mechanical  possibility,  which  an  athlete  or  a 
mechanic  could  have  answered  as  well  as  a  physician, 
and  every  man  upon  the  jury  as  well  as  either."1 

Thus  the  opinions  of  surgeons  are  inadmissible  in 
a  murder  trial  as  to  the  probable  position  of  the  victim 
when  he  received  the  blow  or  shot  which  caused  his 
death;2  or  as  to  the  position  of  the  victim's  arm  when 
he  received  the  fatal  shot ;  or  as  to  the  relative  position 
of  the  parties  to  a  homicide. 

A  physician  may  not  testify  whether  decedent  was 
struck  from  behind  or  before,  unless  he  describes  the 
wound  so  minutely  that  the  jury  may  judge  for  them- 
selves of  the  accuracy  of  his  conclusion.3 

Qualifications  Necessary  for  Medical  Expert. — The 
qualifications  of  a  medical  expert  are  not  dependent 
upon  his  having  been  educated  in,  or  an  upholder  of, 
the  doctrines  of  any  particular  school,4  to  determine 
the  superiority  of  which  would  involve  the  possession 
of  equal  or  superior  expert  abilities  on  the  part  of  the 
court,  and  it  will  suffice  if  he  has  studied  his  profession 
without  being  actively  engaged  in  the  practice  of  it.5 

Physicians  and  surgeons  in  the  absence  of  a  statutory 
requirement  are  not  required  to  have  a  license  from 
any  board  or  a  diploma  from  a  medical  school  in  order 
to  be  competent  to  testify  as  experts.6  A  witness 

1  Cook  v.  State,  24  N.  J.  L.,  843. 

1  Kennedy  v.  People,  39  N.  Y.,  245. 

1  Parrott  r.  Commonwealth  (Ky.),  47  S.  W.,  452. 

4  Bowman  t.  Woods,  I  Greene  (Iowa),  441 ;    i  Wharton  Ev.,  Sec.  441. 

4  31  Greenl.  Ev.,  Sec.  440. 

•  New  Orleans  R.  R.  Co.  v.  Allbritton,  38  Miss.,  242;  State  v.  Speaks,  94 
N.  C.,  865;  see  also  the  Wisconsin  Statutes  which  require  a  license  or  diploma 
to  entitle  one  to  testify  as  a  medical  expert. 


262    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

who  testifies  that  he  is  a  "botanic  physician;"  that 
he  has  his  medicines  patented;  has  a  right  to* sell  them 
everywhere,  but  has  no  license  to  practise,  is  incom- 
petent to  give  an  opinion  as  to  the  effect  of  certain 
offensive  odors  upon  a  person's  health.1 

Experience  Necessary  in  Special  Cases. — It  is  not 
necessary  to  show  experience  in  special  cases  in  order 
to  entitle  a  physician  or  surgeon  to  testify  as  an 
expert.  A  general  practitioner  is,  ordinarily,  a  com- 
petent witness.2  A  physician  may  be  qualified  as  an 
expert,  although  his  knowledge  may  have  been  gained 
by  reading  and  sources  other  than  personal  experi- 
ments.3 Thus  it  has  been  held  that  a  physician  may 
be  examined  as  to  injuries  done  to  the  eyes  of  a  party 
by  violence,  although  he  may  not  be  a  surgeon  or  an 
oculist.4 

But  a  specialist  who  has  no  practical  experience 
beyond  his  specialty  is  incompetent,  as  a  general  rule, 
to  express  an  opinion  on  a  question  that  does  not 
pertain  to  his  specialty.  Thus  a  specialist  in  diseases 
of  the  eye  cannot  testify  as  an  expert  in  relation  to 
mental  diseases.5  A  general  practitioner  is  probably 
not  incompetent  to  give  expert  testimony  on  the 
ground  that  he  had  not  had,  in  his  experience,  a  case 
like  the  one  in  question.6  Thus  a  physician  or  surgeon 
who  had  never  seen  a  wound  made  with  a  knife  or 
dirk  has  been  held  competent  to  express  an  opinion 
that  the  wound  in  question  was  made  with  a  dirk.7 
A  physician  has  been  allowed  to  state  the  effect  of  a 

1  Hochstrasser  v.  Martin,  16  N.  Y.  S.,  558. 

2  Kelly  v.  United  States,  27  Fed.  Rep.,  616;  Hathaway  v.  National  Life 
Ins.  Co.,  48  Vt.,  335- 

3  Isenhone  v.  State,  157  Ind.,  517. 

4  Castner  ».  Sliker,  33  N.  J.  L.,  95. 

6  Fairchild  v.  Bascomb,  36  Vt.,  410. 

•  State  v.  Clark,  12  Ired.  (N.  C.),  151. 

7  Mendum  v.  Com.,  6  Raud.  (Va.),  704. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          263 

certain  drug  on  the  womb,  although  he  was  without 
any  personal  knowledge  of  the  effects  of  the  drug, 
his  knowledge  on  the.  subject  being  derived  from  read- 
ing.1 A  physician  in  active  practice  for  more  than 
twenty-five  years  has  been  held  incompetent  to  testify 
that  certain  symptoms  which  had  been  described  indi- 
cated arsenical  poisoning,  where  he  had  never  had  a 
case  of  arsenical  poisoning  to  treat  as  a  physician.8 

A  medical  practice  confined  to  the  treatment  of 
ordinary  diseases  does  not  qualify  a  physician  to 
testify  as  an  expert  on  questions  which  pertain  to  a 
particular  branch  of  medical  science  to  which  the  physi- 
cian has  given  no  study,  and  concerning  which  he  has 
had  neither  observation  nor  experience.  For  example, 
such  a  general  practitioner  cannot  testify  as  an  expert 
upon  insanity,  upon  hypothetical  questions  as  to  sup- 
posed facts,  of  which  he  had  no  personal  knowledge.3 
Neither  can  such  a  physician  testify  as  an  expert  as 
to  the  effect  upon  health  of  breathing  illuminating 
gas  where  he  has  had  no  experience  with  the  effects 
of  gas  upon  health.4  A  physician  who  is  an  expert 
relatively  to  the  subject  matter  on  which  he  was 
examined  is  not  disqualified  by  the  fact  that  he  is 
not  engaged  in  active  practice  at  the  time.6 

Accordingly  a  witness  has  been  held  competent  to 
testify  as  a  medical  expert  where  he  has  attended  a 
course  of  medical  lectures,  has  obtained  a  license  from 
the  State,  and  has  practised  as  a  physician  for  a  year 
before  he  abandons  the  medical  profession  for  that 
of  the  law,  where  he  has  continued  to  read  medical 
books,  and  has  kept  up  with  the  advance  made  in 

1  State  v.  Wooji,  53  N.  H.,  484. 

1  Soquet  v.  State,  72  Wis.,  659. 

1  Russell  P.  State,  53  Miss.,  367. 

4  Emerson  v.  Lowell  Gas  Light  Co.,  6  Allen.  (Mass.),  146. 

*  Everett  v.  State,  62  Ga.,  65. 


264    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

the  science  of  medicine,  and  feels  competent  to  express 
an  opinion  upon  the  subject.1 

(b)  Competency  of  Opinions  Based  on  Statements 
Made  Out  of  Court. — The  rule  is  that  a  medical  expert 
has   no   right   to  give   in   evidence   an   opinion   based 
on  information  which  he  has  derived  from  statements 
made  to  him  by  parties  out  of  court  and  not  under 
oath.2     In  order  for  his  opinion  to  be  admissible,  it 
must  be  founded  either  on  his  personal  knowledge  of 
the  facts,  upon  facts  testified  to  in  court,  or  upon  a 
hypothetical  question.3 

(c)  Competency   of   Opinions   Based   Partly  on  the 
Patient's  Declarations. — The  opinion  of  a  surgeon  or 
a  physician  being  necessarily  formed   in   part  on  the 
statements    of    his    patient,    describing    his    condition 
and  symptoms,  and  the  causes  which  have  led  to  the 
injury  or  disease  under  which  he  appears  to  be  suffer- 
ing, is  clearly  competent  as  coming  from  an  expert. 
The  existence  of  many  bodily  sensations  and  ailments 
which   go   to   make   up   the   symptoms   of  disease   or 
injury  can  be  known  only   to  the   person  who  expe- 
riences them.     It  is  the  statement  and  description  of 
these  which  enter  into  and  form  part  of  the  facts  on 
which   the  opinion  of  an  expert  as  to  the  condition 
of  health  or  disease  is  founded.4 

It  is  also  competent  for  physicians  or  surgeons  to 
give  their  opinions  based  on  a  personal  examination  of 
the  patient  and  on  statements  made  by  the  patient  at 
that  time  as  to  the  patient's  present  bodily  condition.5 

1  Tullis  v.  Kidd,  12  Ala.,  648. 

2  Hurst  v.  C.  R.  I.,  etc.,  R.  Co.,  49  la.,  76. 

3  Grand  Rapids,  etc.,  R.  Co.  v.  Huntley,  38  Mich.,  537;   Louisville,  etc., 
R.  Co.  v.  Shires,  108  111.,  617. 

4  Barber  v.  Meriam,  n  Allen  (Mass.),  322;  Quaifeu.  Chicago,  etc.,  R.  Co., 
48  Wis.,  513. 

6  Wilson  v.  Granby,  47  Conn.,  59;  Louisville,  etc.,  R.  Co.  v.  Snyder,  117  Ind., 
435;  Fort  v.  Brown,  46  Barb.  (N.  Y.),  366;  Denton  v.  State,  i  Swan.  (Tenn.), 
279. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS  i>r,:> 

(d)  In  Cases  Concerning  Wounds. — It  is  well  settled 
that  medical  experts  can  give  their  opinions  as  to  the 
means  by  which  a  wound  was  inflicted.  Thus  medical 
experts  who  were  present  at  the  autopsy  and  examined 
the  head  of  the  murdered  person  may  testify  that 
in  their  opinion  the  injuries  to  the  head  could  not 
have  been  produced  at  the  same  time  and  by  one  blow,1 
and  a  practising  physician  may  be  asked  his  opinion  as 
to  the  kind  of  instrument  used  in  inflicting  the  wound,2 
whether  a  club,  knife,  crowbar,  musket,  or  razor,  or 
by  a  gunshot,3  and  as  to  the  direction  from  which 
blows  were  received.  For  example,  a  witness  who 
has  made  a  postmortem  examination  of  the  body,  and 
has  stated  that  it  enabled  him  to  form  an  intelligent 
opinion  on  the  subject,  has  been  allowed  to  testify 
that  the  blow  was  delivered  from  behind  and  above 
the  head  of  the  person  struck,  and  from  the  left  toward 
the  right.4  A  North  Carolina  court  has  held  it  proper 
to  ask  a  physician  the  question:  "Assuming  that  the 
jury  should  believe  that  the  prisoner  and  deceased 
were  about  the  same  height,  and  that  the  pistol  was 
fired  by  the  prisoner  in  the  manner  and  position  testi- 
fied to  by  the  State's  witnesses,  what,  in  your  opinion, 
would  have  been  the  range  of  the  shot  after  entering 
the  skull,  taking  into  consideration  the  bone,  muscles, 
and  other  substances  in  the  head?"5  But  a  physician 
is  not  competent  to  express  an  opinion  as  to  the  posi- 

1  Commonwealth  v.  Piper,  120  Mass.,  185. 

1  Territory  v.  Eagan,  3  Dak.,  119;  Williams  v.  State,  64  Md.,  384. 

1  (Club)  State  v.  Seymour,  94  Iowa,  699;  Wait  v.  State,  13  Tex.  App.,  169; 
Carthans  p.  State,  78  Wis.,  560;  (knife)  Batten  p.  State,  80  Ind.,  394;  State 
v.  Clark,  12  Ired.  L.  (34  N.  Car.),  151;  State  p.  Chee  Gong,  17  Or.,  635;  (crow- 
bar or  adze)  Davis  v.  State,  38  Md.,  35;  (musket)  Gardiner  v.  People,  6  Park. 
Cr.  Rep.,  155;  (razor)  State  v.  Knight,  43  Me.,  u;  (gunshot)  Prince  v.  State, 
loo  Ala.,  144;  People  v.  Wonglehuey,  117  Cal.,  624;  State  v.  Cross,  68  Iowa, 
1 80. 

4  Hopt  v.  Utah,  120  U.  S.,  431.  »  State  p.  Keene,  100  N.  C.t  509. 


266    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

tion  of  the  body  when  the  blow  was  struck.1  Nor  can 
he  testify  as  to  how  the  wounds  upon  the  defendant 
were  probably  made.  Such  testimony  not  being  pecu- 
liarly within  the  knowledge  of  the  witness  or  of  the 
medical  profession.2  But  a  physician  or  surgeon  is 
not  incompetent  to  express  an  opinion  on  the  subject 
of  wounds,  because  of  his  want  of  observation  of  any 
case  like  the  one  in  question.  For  example,  a  physi- 
cian or  surgeon  who  has  never  seen  a  wound  made 
with  a  dirk,  is  competent  to  express  an  opinion  that 
the  particular  wound  was  made  with  a  dirk,3  though  it 
might  lessen  the  credit  given  to  his  testimony.4  Nor  is 
it  necessary  that  a  medical  witness  should  have  actually 
seen  the  wounds  in  order  to  qualify  him  to  testify  as 
an  expert,  as  his  testimony  must  be  based  upon  a 
description  of  the  wound  given  in  court  by  those  who 
saw  it.5  In  the  examination  of  an  expert  as  to  the 
appearance  of  the  bullet  wound  of  which  deceased 
died,  it  is  not  improper  to  state  a  supposed  case  as 
a  means  of  showing  what,  under  different  conditions, 
the  appearance  of  a  wound  made  by  the  same  agency 
might  or  would  have  been. 

(e)  On  the  Cause  of  Death. — Physicians  may  give 
their  opinions  as  to  the  cause  of  the  death  of  any 
particular  person,  such  opinions  being  based  upon  a 
personal  knowledge  of  the  facts  of  the  case,  or  upon 
a  statement  of  the  symptoms  of  the  disease  or  injury 
as  detailed  by  others.6  Such  as  death  was  produced 

1  Kennedy  v.  People,  39  N.  Y.,  245.     2  State  v.  Rainsbarger,  74  la.,  196. 

3  Mendum  v.  Com.,  6  Raud.  (Va.),  704. 

4  State  v.  Clark,  12  Ired.  (N.  C.),  151.  B  Page  v.  State,  61  Ala.,  16. 

6  Alabama — Mitchell  v.  State,  58  Ala.,  418.  Arkansas — Polk  v.  State, 
36  Ark.,  117,  124.  Illinois — Schneider  v.  Manning,  121  111.,  376.  Florida — 
Newton  v.  State,  21  Fla.,  56.  Michigan — People  v.  Barker,  60  Mich.,  277. 
Mississippi — Pitts  v.  State,  43  Miss.,  472.  North  Carolina — State  v.  Bowman, 
78  N.  C.,  509.  Pennsylvania — Com.  v.  Crossmire,  156  Pa.,  304.  Texas — 
Powell  v.  State,  13  Tex.  Ct.  of  App.,  244.  Virginia — Livingston  v.  Conn., 
14  Gratt.,  592.  Washington — Ilwaco  R.,  etc.,  Co.  v.  Heddrick,  I  Wash.,  446. 
Wisconsin — Boyle  v.  State,  61  Wis.,  440. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          267 

by  choking,  the  opinion  being  formed  from  the  finger 
marks  on  the  neck.  Or  they  may  give  their  opinion 
as  to  which  of  two  wounds  produced  death. 

An  experienced  physician  may  give  his  opinion 
that  deceased  was  dead  before  a  certain  train  passed 
over  the  body,  although  such  opinion  was  founded 
upon  facts  testified  to  by  others,  and  not  upon  matters 
coming  under  his  own  observation.1  In  a  case  where 
it  was  objected  that  the  physician  who  made  the  post- 
mortem examination  of  the  deceased  could  not  express 
an  opinion  that  death  resulted  from  concussion  of  the 
brain,  unless  he  had  opened  the  head  and  examined 
the  brain,  the  court  remarked:  "We  are  aware  of 
no  law  that  required  him  to  open  the  skull  and  examine 
the  brain  before  he  could  be  permitted  to  express 
such  an  opinion  to  the  jury.  Of  course,  the  opinion 
of  a  medical  witness  in  such  case  would  have  more 
or  less  weight  with  the  jury  according  to  the  extent 
of  the  examination,  the  professional  rank  and  char- 
acter of  the  witness."1  It  has  been  held  that  a  physi- 
cian may  give  his  opinion  as  to  whether  a  clot  of 
blood  produced  by  injuries  could  have  existed  for 
a  specified  time  without  causing  death.3  A  medical 
expert  has  been  allowed  to  give  in  evidence  his  opinion 
as  to  whether  a  stillborn  child  would  have  been  born 
alive  if  medical  assistance  had  been  received  in  time, 
where  the  testimony  shows  that  the  mother  suffered 
more  pain  and  mental  anxiety  on  account  of  her  con- 
dition than  if  the  physician  had  been  present.4  Also 
they  have  been  allowed  to  testify,  in  response  to  a 
hypothetical  question,  that  death  resulted  from  suffo- 
cation, aided  by  extensive  injury  to  the  brain,  and  that 
they  knew  of  no  disease  which  would  produce  death 

1  State  t».  Clark,  15  S.  C.,  403.  *  Ebos  v.  State,  34  Ark.,  520. 

*  State  v.  Pike,  65  Me.,  in. 

*  Western  Union  Tel.  Co.  r.  Cooper,  71  Tex.,  507. 


268     PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

with  those  symptoms.1  The  reason  for  receiving  such 
opinions  is  that  it  would  otherwise  be  impossible  in 
many  cases  to  prove  the  cause  and  manner  of  death, 
especially  in  those  cases  where  there  was  no  one 
present  at  the  time  of  death.  In  such  cases  the  opinions 
of  physicians  and  surgeons  who  have  made  a  post- 
mortem examination,  are  indispensable  in  order  to 
ascertain  the  facts  and  clear  up  the  mystery. 

(/)  On  the  Cause,  Nature,  and  Symptoms  of  Disease. 
—Physicians  and  surgeons  are  competent  to  give  their 
opinion  in  evidence  as  to  the  cause,2  duration,3  and 
curability  of  disease.4  Thus  on  the  question  of  the 
curability  of  disease,  a  physician  who  had  testified 
as  to  the  disease  from  which  a  woman  was  suffering 
was  allowed  to  give  his  opinion  as  to  the  proportion 
of  such  patients  who  recover.5  Upon  the  question  of 
cause  he  may  give  his  opinion  in  evidence  that  malaria 
was  brought  on  by  stagnant  water,6  or  whether  pres- 
sure at  the  base  of  the  brain  arises  from  tumors  or 
other  causes,7  or  what  is  responsible  for  a  contagious 
disease.8  Their  opinions  are  also  received  as  to  the 
probability  of  the  recurrence  of  a  disease,9  and  the 
effect  upon  the  general  health.10  They  may  also 

1  People  v.  Foley,  64  Mich.,  148. 

2  Eufaula  v.  Simmons,  86  Ala.,  515;  Hardiman  v.  Brown,  162  Mass.,  585; 
Matterson  ».  N.  Y.  C.  Ry.  Co.,  35  N.  Y.,  487;  Kliegel  v.  Aitken,  94  Wis.,  432. 

3  Bennett  v.  Fail,  26  Ala.,  605;  Tatum  v.  Mohr,  21  Ark.,  349;  Edington  v. 
^Etna  Life  Ins.  Co.,  77  N.  Y.,  564;  Jones  v.  White,  n  Humph.  (Tenn.),  268; 
Knox  v.  Wheelock,  56  Vt.,  191. 

4  New  York  Electric  Equipment  Co.  v.  Blair,  79  Fed.,  896;  Matteson  v. 
N.  Y.  C.  Ry.  Co.,  35  N.  Y.,  487;  Griswold  v.  N.  Y.  Central  R.  R.  Co.,  115 
N.Y.,61. 

6  Cole  v.  Lake  Shore,  etc.,  Ry.  Co.,  95  Mich.,  77. 

6  Eufaula  v.  Simmons,  86  Ala.,  515. 

7  Hardiman  v.  Brown,  162  Mass.,  585. 

8  Kliegel  v.  Aitken,  94  Wis.,  432. 

9  Linton  v.  Hurley,  14  Gray  (Mass.),  191;  Willey  v.  Portsmouth,  35  N.  H., 

303- 

10  Pidcock  ».  Potter,  68  Pa.,  342. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          269 

testify  as  to  the  cause  of  the  disease  and  the  remedy 
for  it.1 

(g)  In  Malpractice  Cases. — Whether  a  physician 
has  attended  skilfully  or  properly  a  particular  case 
is  a  question  on  which  the  opinion  of  medical  men  of 
the  same  school  may  be  received  in  evidence,2  and 
they  may  state  whether  or  not  in  their  opinion  it  was 
in  conformity  with  the  established  mode  of  treatment,3 
or  whether  an  amputation  has  been  skilfully  performed.4 
Thus  a  physician  may  express  the  opinion  that  a 
limb  was  or  was  not  as  good  as  the  average  condition 
of  such  cases  treated  by  skilful  physicians.5  It  is 
not  necessary  that  the  opinion  of  a  medical  expert 
in  a  malpractice  case  should  be  asked  upon  any  par- 
ticular part  of  the  treatment,  but  taking  the  whole 
treatment  together  he  may  be  asked  whether  it  "was 
proper  or  improper."6  A  physician  who  has  attended 
a  patient  under  the  care  of  a  brother  physician  may 
testify  as  to  what,  so  far  as  he  could  judge,  had  been 
the  first  physician's  treatment;  in  what  respects  it 
differed  from  his  own;  what  effect,  so  far  as  he  could 
judge,  it  had  upon  the  plaintiff,  and  whether  or  not 
he  saw  any  evidence  that  the  plaintiff  had  been  injured 
by  his  treatment.7 

(h)  In  Cases  of  Rape. — Physicians  and  surgeons  are 
called  upon  to  testify  in  nearly  all  prosecutions  for 
crime  against  nature,  as  they  are  important  witnesses 

1  Schneider  P.  Manning,  121  111.,  376;  Newton  v.  State,  21  Fla.,  26;  McClain 
p.  Brooklyn  City  Ry.  Co.,  116  N.  Y.,  459. 

1  Hoener  v.  Koch,  84  111.,  408;  Mayo  p.  Wright,  63  Mich.,  32;  Heath  t. 
Glisan,  3  Or.,  67;  Roberts  p.  Johnson,  58  N.  Y.,  613;  Wright  v.  Hardy,  22 
Wis.,  348. 

*  Twombly  v.  Leach,  II  Cush.  (Mass.),  405. 

4  Tullis  r.  Rankin,  6  N.  Dak.,  44;  Olmstead  p.  Gere,  100  Pa.,  127;  Wright 
p.  Hardy,  22  Wis.,  348. 

*  Olmstead  P.  Gere,  100  Pa.  St.,  127. 

*  Mayo  P.  Wright,  63  Mich.,  32. 

1  Barber  p.  Merriam,  1 1  Allen  (Mass.),  322. 


270    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

in  case  of  marks  of  violence  being  found  on  the 
body  of  the  victim,  or  in  case  stains  are  found  on 
the  clothing  of  either  party.  Science  claims  by  the 
use  of  the  microscope  in  the  investigation  of  stains 
upon  the  clothing,  it  can  determine  with  a  great 
degree  of  accuracy  the  guilt  or  innocence  of  persons 
accused  of  the  heinous  crime  of  rape.  A  case  reported 
in  Richardson's  Medical  Microscopy,  299,  300,  may 
be  of  interest,  and  I  have  set  it  out  as  follows:  "In 
a  case  upon  which  I  was  consulted  some  time  since, 
where  a  young  girl  was  said  to  have  been  violated 
by  main  force  and  held  down  for  some  minutes  subse- 
quently, the  chemise  worn  on  the  occasion  was  brought 
to  me  for  examination.  On  inspection,  besides  sundry 
small  reddish  spots  and  streaks  upon  the  front,  there 
were  to  be  seen  two  large  stains  on  either  side  of  the 
middle  of  the  back  of  the  garment,  each  about  4  inches 
long  by  3  inches  wide,  such  as  might  occur  from  any 
fluid  running  down  the  inside  of  the  thighs  from  the 
vulva  of  a  female  lying  upon  her  back  in  a  nearly 
horizontal  position.  My  first  duty  being  obviously  to 
determine  whether  these  reddish  stains  were  produced 
by  blood,  the  chemise  was  doubled  over  at  the  most 
highly  tinted  part  of  one  spot,  and  the  convex  portion 
of  the  fold  scraped  lightly  with  a  sharp  scalpel  over  a 
clean  slide  until  a  small  quantity  of  fine  reddish  dust 
was  obtained.  This  powder  was  covered  with  thin 
glass,  and  a  drop  of  water  being  applied  to  one  edge, 
and  a  fragment  of  bibulous  paper  to  the  other,  a  cur- 
rent of  fresh  fluid  was  kept  up  for  about  one  minute, 
when  the  specimen  was  examined  with  a  power  of 
1 200  diameters.  .  .  .  These  cellular  elements  be- 
came more  clearly  visible  when  slightly  tinted  with 
aniline,  and  on  measurement  with  the  micrometer 
were  found  to  average  about  ^nnrr  and  mir  of  an  inch 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          Til 

in  diameter  respectively,  whence  I  concluded  that  the 
red  stains  were  produced  by  blood,  probably  that 
of  a  human  being.  .  .  .  The  main  question  as 
to  the  presence  or  absence  of  spermatozoa  still  con- 
tinuing unsolved,  as  none  had  been  detected  among  the 
particles  of  blood  clot,  a  fragment  of  muslin  about 
three-fourths  of  an  inch  long  by  one-eighth  of  an  inch 
wide,  selected  from  a  portion  where  the  fabric,  although 
but  little  stained,  was  a  good  deal  stiffened  by  the 
suspected  material,  wras  cut  out  with  a  pair  of  curved 
scissors,  and,  after  soaking  for  a  couple  of  minutes  in 
a  drop  or  two  of  weak  glycerin  and  water,  its  inner 
surface  was  gently  scraped  and  pressed  with  a  scalpel, 
the  visible  filaments  of  cotton  picked  out  with  a 
mounted  needle,  the  remainder  covered  with  a  very 
thin  glass  and  subjected  to  examination  under  .  .  a 
power  of  about  2800  diameters.  Several  indubitable 
spermatozoa  .  .  were  readily  detected,  and  proved 
beyond  all  question  that  spermatic  fluid,  mingled 
with  blood,  had  caused  the  stains  upon  the  chemise. 
In  giving  testimony  in  prosecutions  for  rape  a 
physician  cannot  draw  conclusions.  Thus  where 
a  physician  has  testified  that  from  the  discharge 
he  could  not  tell  whether  the  child  assaulted  had 
gonorrhea  or  vaginitis,  as  the  diseases  are  similar, 
he  cannot  state  that  from  the  fact  that  the  accused 
had  gonorrhea  he  supposed  that  it  was  gonorrhea; 
for  the  reason  that  that  would  be  assuming  as  proven 
the  very  thing  to  be  proven,  that  the  accused  had 
had  contact  with  the  female.1  A  physician  will  not 
be  allowed  to  answer  a  hypothetical  question  put 
to  him,  whether  in  his  opinion  the  facts  assumed 
would  constitute  rape,  as  it  asks  for  a  legal  instead  of 

1  Moore  v.  State,  17  Ohio  St.,  521. 


272     PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

medical  knowledge.1  A  physician  may  be  examined, 
however,  as  to  whether  the  health  and  physical  condi- 
tion of  the  prosecutrix  at  the  time  of  the  alleged  offence 
was  such  that  she  was  capable  of  resisting  the  defend- 
ant;2 but  he  cannot  answer  a  question:  "From  what 
you  know  of  her  health  and  strength,  in  your  opinion 
could  the  defendant  have  carnal  connection  with  her 
against  her  will  without  resort  to  other  means  than 
has  been  held  proper  for  a  medical  expert  to  state 
the  exercise  of  his  ordinary  physical  powers?"3  It 
what  effect  a  rape  would  have  on  the  sexual  organs 
of  the  female,  and  to  testify  to  the  condition  of  the 
sexual  organs  of  the  female  soon  after  the  commission 
of  the  crime.4 

Likewise  medical  experts  may,  in  a  rape  case, 
testify  to  the  abnormal  condition  of  the  private  parts 
of  the  person  alleged  to  have  been  assaulted,  and  to 
the  causes  which  would  produce  such  condition.5 

In  our  climate  the  age  of  puberty  is  frequently 
earlier  than  in  England  or  the  more  northern  States 
of  the  Union.  We  have  among  us  almost  every  variety 
of  the  races  of  men.  To  adopt  the  rule  as  to  the 
age  of  puberty  which  exists  in  England  and  more 
northern  countries,  where  the  climate,  conditions,  and 
habits  of  the  people  are  different  and  the  population 
mostly  of  one  race,  would  not  only  be  a  departure 
from  reason  and  sense,  but  would  be  in  violation  of 
the  statute  itself,  by  withdrawing  persons  who  had 
actually  violated  it  from  punishment.  In  England 
they  do  not  propose  to  permit  guilty  persons  to 
escape,  but  assume  the  physical  impossibility  of  an 

1  People  v.  Brown,  53  Mich.,  53;   19  N.  W.,  172. 

2  State  v.  Smith,  Phillips  (N.  C.),  Law,  302. 

3  Wooden  v.  People,  I  Parker  Cr.  Cas.,  464. 

4  Noonan  v.  State,  55  Mo.,  258. 

B  Commonwealth  v.  Lynes,  142  Mass.,  577. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS  273 

infant  under  the  age  of  fourteen  years  being  capable 
of  being  guilty.  Here  we  know  that  many  infants 
under  fourteen  are  capable  of  being  guilty,  but  that 
a  majority  are  not  capable  under  that  age.  Hence 
we  are  compelled  to  suit  the  rules  of  law  to  the  fact, 
as  the  rule  itself  has  no  authority  but  in  fact.  Modi- 
fied, then,  to  our  own  circumstances  and  conditions, 
the  law  is  this:  An  infant  under  the  age  of  fourteen 
years  is  presumed  to  be  incapable  of  committing  the 
crime  of  rape,  or  an  attempt  to  commit  it,  but  that 
presumption  may  be  rebutted  by  proof  that  he  has 
arrived  at  the  age  of  puberty  and  is  capable  of  emission 
and  consummating  the  crime.1 

Physicians  may  give  in  evidence  their  opinions  as 
to  whether  penetration  has  occurred  so  as  to  con- 
stitute rape;2  also  whether  pregnancy  is  likely  to 
occur  as  a  result  of  rape.3  A  medical  expert  is  in- 
competent to  give  his  opinion  as  to  whether  a  rape 
could  have  been  committed  in  the  manner  described, 
nor  whether  a  woman  would  swoon  or  be  nerved  with 
more  than  usual  strength.4 

(i)  In  Prosecutions  for  Seduction. — The  opinion 
of  medical  experts  is  admissible  in  a  prosecution  for 
seduction,  where  it  is  to  the  effect  that  sexual  inter- 
course under  the  circumstances  described  by  the 
complainant,  i.  e.,  in  a  buggy,  was  highly  improbable, 
if  not  impossible,  and  also  as  to  the  pain  and  suffering 
the  complainant  would  have  experienced  had  such  an 
act  taken  place.6 

(j)  In  Cases  of  Abortion. — The  opinions  of  medical 
experts  are  received  upon  the  question  of  whether 

1  Williams  v.  State,  14  Ohio,  222. 

*  State  P.  Smith,  Phil.  L.  (61  N.  Car.),  302;  Proper  v.  State,  85  Wis.,  615. 
1  Young  v.  Johnson,  123  New  York,  226;  State  v.  Knapp,  45  N.  H.,  148 
4  Cook  v.  State,  24  N.  J.  L.,  843. 

*  People  t.  Clark,  33  Mich.,  112. 

18 


274    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

an  abortion  has  been  performed,1  and  as  to  whether 
the  means  employed  were  mechanical  means,2  or  the 
administering  of  drugs.3 

If  the  former  course  has  been  followed,  the  witness 
may  state  that  the  wounds,  judging  from  their  char- 
acter and  situation,  were  such  as  might  have  been  self- 
inflicted,4  and  that  certain  surgical  instruments  found 
in  the  house  of  the  defendant,  indicted  for  an  abortion, 
were  adapted  to  produce  an  abortion.5 

Physicians  may  say  whether  certain  medicines 
are  known  as  abortives  and  whether  a  specified  quantity 
administered  at  certain  times  would  produce  an  abor- 
tion,6 and  whether  traces  would  exist  under  certain 
circumstances,  even  though  no  proof  of  such  circum- 
stances had  been  made.7 

(k)  In  Cases  of  Miscarriage. — A  physician's  opinion 
is  receivable  in  evidence  concerning  the  cause  of  a 
miscarriage,  whether  it  was  caused  by  injuries  and 
exposure,8  accident,9  or  whether  the  result  was  pro- 
duced by  some  inherent  physical  difficulty.10 

(/)  In  Cases  Involving  the  Question  of  Pregnancy. 

—Physicians  are  permitted  to  express  an  opinion  on 

the  question  of  pregnancy.11    A  medical  witness  has 

been  allowed   to  testify  that  pregnancy  was  just  as 

1  State  v.  Lee,  35  Conn.,  265;  Hank  v.  State,  148  Ind.,  238;  State  v.  Smith, 
32  Me.,  370;  Com.  v.  Thompson,  159  Mass.,  56;  State  v.  Wood,  53  N.  H.,  484, 
495;  State  v.  Glass,  5  Or.,  73. 

2  State  v.  Lee,  65  Conn.,  265;  State  v.  Wood,  53  N.  H.,  484. 

3  Bathrick  v.  Detroit  Post,  etc.,  Co.,  50  Mich.,  629. 

4  State  v.  Lee,  65  Conn.,  265. 

6  Com.  v.  Brown,  121  Mass.,  69. 

6  Williams  v.  State,  19  S.  W.,  897. 

7  Bathrick  v.  Detroit  Post,  etc.,  Co.,  50  Mich.,  629. 

8  McKeon  v.  Chicago,  etc.,  Ry.  Co.,  94  Wis.,  477. 

9  State  v.  Ginger,   80  Iowa,  574;  Benjamin  v.  Holyoke  St.  R.  Co.,    160 
Mass.,  3. 

10  Hank  v.  State,  148  Ind.,  238. 

11  State  v.  Wood,  53  N.  H.,  484. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          275 

likely  to  take  place  in  case  of  rape  as  in  the  case  of 
a  voluntary  sexual  connection.1 

(m)  In  Cases  Involving  Premature  Birth. — Physi- 
cians,2 and  women  who  have  had  experience  in  child- 
birth, and,  as  such,  been  in  attendance  at  premature 
births,  may  testify  as  experts  to  their  opinion  as  to 
whether  the  birth  of  a  child  was  premature.3  A  physi- 
cian may  testify  as  to  the  age  of  a  child.4 

(«)  In  the  Detection  of  Poisons. — A  physician  or 
surgeon  is  entitled  to  testify  as  to  the  effect  of  certain 
poisons  on  the  human  system.5  For  example,  he  may 
testify  as  to  the  symptoms  of  strychnine  in  the  human 
system;6  and  state  that  in  his  opinion  death  was 
caused  by  the  administration  of  arsenic.7  It  has  been 
held  that  a  physician  cannot  testify  as  an  expert  as 
to  the  effects  of  poison  upon  the  system  until  it  is 
first  shown  that  he  is  qualified  as  such  from  study  and 
experience  in  medicine.8  Although  the  opinions  of 
practising  physicians  who  are  not  professional  chemists 
have  been  received  as  to  the  analysis  of  the  stomach, 
and  the  tests  usually  applied  for  detecting  poison  in 
such  cases,  their  opinions  are  entitled  to  less  weight 
than  those  given  by  practical  chemists.9  The  right  of 
a  physician  to  testify  as  to  the  result  of  a  chemical 
analysis  has  been  recognized,10  but  the  mere  fact  that 
he  is  a  physician  does  not  qualify  him  to  give  expert 
evidence,  on  the  question  of  whether  or  not  the  con- 
tents of  the  human  stomach,  as  revealed  by  a  post- 
mortem examination,  contains  arsenic.11 

1  State  v.  Knapp,  45  N.  H.,  148;  Young  v.  Johnson,  123  N.  Y.,  226. 
1  Young  v.  Makepeace,  103  Mass.,  50.    *  Mason  v.  Fuller,  45  Vt.,  29. 
4  People  v.  Johnson,  70  111.  App.,  634. 

•  Mitchell  v.  State,  58  Ala.,  418;  State  v.  Terrill,  12  Rich.  (S.  C.),  321. 

•  Polk  v.  State,  36  Ark.,  117.  J  Mitchell  r.  State,  58  Ala.,  417. 

•  Polk  P.  State,  36  Ark.,  117.  •  State  P.  Hinkle,  6  la.,  380. 
10  State  P.  Hinkle,  6  Iowa,  380.                »  State  v.  Cole,  63  Iowa,  695. 


276    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

(0)  On  the  Effects  of  Drugs. — Physicians  may  give 
their  opinion  on  the  effect  of  a  certain  quantity  of  a 
particular  drug  on  one  who  takes  it.1 

(p)  As  to  Mental  Condition. — (i)  In  General. — It 
seems  to  be  conceded  that  the  opinions  of  medical 
men  on  the  question  of  insanity  are  evidence.  Such 
opinions  may  be  stated  even  on  the'  facts  proved, 
though  the  physician  may  not  have  seen  the  patient.2 

(2)  Qualifications  of  Experts  on  Insanity. — A  general 
knowledge  as  a  medical  man  at  least  is  required  to 
enable  one  to  testify  as  an  expert  on  questions  per- 
taining to  insanity.3 

Physicians  in  general  practice  who  have  been  prac- 
tising their  profession  for  a  number  of  years  are 
experts  upon  the  subject  of  sanity  or  insanity  and 
it  is  not  necessary  that  they  should  have  made  the 
particular  disease  involved  in  the  inquiry  a  specialty 
to  render  their  testimony  admissible  as  that  of  an 
expert.4  On  the  other  hand,  however,  we  have  a  few 

1  Hoard  v.  Peck,  56  Barb.  (N.  Y.),  202;  State  v.  Perry,  41  W.  Va.,  641; 
Mutual  Life  Ins.  Co.  v.  Tillman,  84  Tex.,  31. 

2  United  States— Davis  v.  United  States,  165  U.  S.,  373.     Alabama — Mc- 
Allister v.  State,  17  Ala.,  434.     California — People  v.  Worthington,  105  Cal., 
1 66.      Colorado — Jordon   v.   People,    19   Colo.,    417.      Connecticut — Barber's 
Appeal,  63  Conn.,  393.     Delaware — State  v.  Windsor,  5  Harr.   (Del.),  512. 
Georgia — Potts  v.  House,  6  Ga.,  324.     Illinois — Schneider  v.  Manning,  121 
111.,  376.     Indiana — Guetig  v.  State,  66  Ind.,  94.     Iowa — Bever  v.  Spangler, 
93  Ia-»  576.     Kentucky — Montgomery  v.  Com.,  88  Ky.,  509.     Maine — St. 
George  v.  Biddeford,  76  Me.,  593.     Maryland — Crockett  v.  Davis,  81  Md., 
134.     Massachusetts — Com.  v.   Rogers,   7  Met.    (Mass.),   500.     Michigan — 
Rivard  v.  Rivard,  109  Mich.,  98.     Missouri — State  v.  Welsor,  117  Mo.,  570. 
New    York — People  v.   Hoch,    150  N.  Y.,  291.     North    Carolina — State  v. 
Matthews,  66  N.  C.,  106.     Pennsylvania — Com.  v.  Buccieri,  153  Pa.,  535. 
South  Carolina — -State  v.  Leeham,  2  S.  D.,  171.     Texas — Pigg  v.  State,  43 
Tex.,  1 08.     Vermont — Foster  v.  Dickerson,  64  Vt.,  233. 

3  State  v.  Crisp,  126  Mo.,  605;  Com.  v.  Brayman,  136  Mass.,  438. 

4  Davis  v.  State,  35  Ind.,  496;  State  v.  Larkins  (Idaho),  47  Pac.,  945;  Baxter 
v.  Reddick,  7  Kan.,  143;  Phelps  v.  Com.,  17  Ky.  L.  Rep.,  706;  Nash  v.  Hunt, 
116  Mass.,  237;  Flynt  v.  Bodenhamer,  80  N.  C.,  205;  Hathaway  v.  National 
Life  Ins.  Co.,  48  Vt.,  336. 


— 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          277 

cases  holding  that  to  render  an  opinion  admissible 
in  evidence  on  the  question  of  sanity  or  insanity  it  is 
essential  that  the  witness  should  be  an  expert  on  the 
general  subject  under  consideration.1  Whether  an 
expert  witness  on  the  question  of  mental  soundness  is 
competent  or  not  to  testify  as  an  expert  is  a  question 
for  the  court.2  It  is  not  affected  by  the  witness'  own 
opinion  as  to  his  own  qualifications  or  incompetency.3 
(3)  Weight  of  Opinions  as  to  Sanity. — While  the 
opinions  of  medical  experts  upon  an  issue  of  sanity 
or  insanity  should  be  considered  by  the  jury  in  con- 
nection with  all  the  other  evidence  in  the  case,  they 
are  not  bound  to  act  upon  them  to  the  exclusion  of 
other  testimony.4  Their  testimony  stands  upon  sub- 
stantially the  same  footing  as  that  of  any  other  witness 
as  to  credibility.5  The  opinion  of  an  expert  witness 
as  to  the  sanity  of  another  is  a  fact  bearing  upon  that 
question,  the  proper  weight  of  which  falls  writhin  the 
province  of  the  jury  to  determine.6  The  opinion  of 
professional  men  on  the  question  of  sanity  or  insanity 
is  frequently  entitled,  however,  to  great  weight;7 
particularly  where  they  had  special  opportunities 
for  observation,8  or  where  they  attended  him  and  were 
with  him  constantly  during  the  time  the  weakness 
of  the  mind  was  charged.9  But  where  there  is  con- 
siderable conflict  between  the  opinions  of  expert 

1  Russell  v.  State,  53  Miss.,  367;  Reed  ».  State,  62  Miss.,  405;  Hutchins  t. 
Ford,  82  Me.,  363. 

1  Davis  P.  State,  35  Ind.,  496;  Fayette  v.  Chesterville,  77  Me.,  28;  Boardman 
r.  Woodman,  47  N.  H.,  120;  Flynt  v.  Bodenhamer,  80  N.  C.,  205. 

•  Boardman  v.  Woodman,  47  N.  H.,  120. 

4  Geutig  P.  State,  66  Ind.,  94;  People  v.  Finley.  38  Mich.,  482. 
'  Eggers  P.  Eggers,  57  Ind.,  461. 

•  Kempsey  v.  McGinnis,  21  Mich.,  123;  Goodwin  v.  State,  96  Ind.,  550. 

1  Choice  v.  State,  31  Ga.,  481 ;  Com.  p.  Rogers,  7  Met.  (Mass.),  500;  Paunell 
p.  Com.,  86  Pa.,  260. 

•  Montague  v.  Allen,  78  Va.,  592. 

•  Jarrett  p.  Jarrett,  11  W.  Va.,  584. 


278    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

witnesses  on  the  question  of  testamentary  capacity, 
their  opinions  are  entitled  to  but  little,  if  any,  weight.1 
Where  there  is  a  disagreement  in  the  testimony  of 
expert  witnesses  in  a  prosecution  for  homicide  on  the 
question  of  the  sanity  of  the  accused  it  is  not  error 
for  the  court  to  refuse  to  instruct  the  jury  that  the 
opinions  of  those  who  had  not  had  particular  experi- 
ence on  the  subject  should  be  disregarded,  where 
nothing  is  said  to  the  jury  calculated  to  mislead  them.2 
The  rule  has  been  laid  down  that  on  questions  of 
sanity  or  insanity  proof  made  by  expert  witnesses 
who  have  devoted  their  time  and  attention  to  cases 
of  mental  derangement  is  of  much  greater  value  than 
that  of  other  persons  who  have  no  scientific  or  experi- 
mental knowledge  on  the  subject,  and  who  can  only 
speak  from  observation  from  outward  signs  and  appear- 
ances.3 In  marshaling  evidence  of  insanity  the  greater 
weight  should  be  given  to  the  judgment  of  medical 
experts  and  those  closely  associated  with  the  party 
claimed  to  be  insane  than  to  other  witnesses;  and, 
next  to  this,  great  respect  should  be  accorded  to  lay 
witnesses  whose  intercourse  and  public  relations  with 
men  enable  them  from  experience  and  observation  to 
form  an  opinion  of  men's  motives  from  their  speech 
and  actions.4 

(q)  Bias  of  Experts. — The  mere  fact  that  an  expert 
requires  pay  for  his  opinions  does  not  discredit  him. 
"Men  who •  have  informed  themselves  by  long  and 
patient  study  and  observation  in  any  particular 
department  of  art  or  science  cannot  be  compelled  to 
come  into  court  and  give  their  opinions  as  experts 
on  controverted  questions  for  the  ordinary  witness 

1  Jamison  v.  Jamison,  3  Houst.  (Del.),  108. 

2  People  v.  Montgomery,  13  Abb.  Pr.,  N.  S.,  207. 

3  Watson  v.  Anderson,  13  Ala.,  203;  State  v.  Reidell,  9  Houst.  (Del.),  470. 

4  Com.  Helmbold,  v.  Kirkbride,  n  Phila.,  427. 


rilYSICIANS  TO  TESTIFY  AS  EXPERTS          279 

fee.  They  have  the  same  right  to  charge  for  their 
advice  and  opinions  as  other  professional  men."1 
Judges  have  very  frequently  disparaged  their  testi- 
mony, commencing  with  Lord  Campbell,  who  said 
that  "hardly  any  weight  is  to  be  given  to  the  evidence 
of  what  are  called  scientific  witnesses;  they  come  with 
a  bias  on  their  minds  to  support  the  cause  in  which 
they  are  embarked,"2  and  extending  to  a  New  York 
court  of  appeals  decision,  where  it  was  said:  "Expert 
evidence,  so-called,  or,  in  other  words,  evidence  of  the 
mere  opinion  of  witnesses,  has  been  used  to  such  an 
extent  that  the  evidence  given  by  them  has  come  to 
be  looked  upon  with  great  suspicion  by  both  courts 
and  juries,  and  the  fact  has  become  very  plain  that 
in  any  case  where  opinion  evidence  is  admissible  the 
particular  kind  of  an  opinion  desired  by  any  party 
to  the  investigation  can  be  readily  procured  by  paying 
the  market  price  therefor  .  .  .  He  [the  expert] 
comes  on  the  stand  to  swear  in  favor  of  the  party 
calling  him,  and  it  may  be  said  he  always  justifies 
by  his  works  the  faith  that  has  been  placed  in  him."3 
Said  the  same  court  in  another  case:  "Better  results 
will  generally  be  reached  by  taking  the  impartial, 
unbiased  judgments  of  twelve  jurors  of  common  sense 
and  common  experience  than  can  be  obtained  by  taking 
the  opinions  of  experts,  if  not  generally  hired,  at  least 
friendly,  whose  opinions  cannot  fail  generally  to  be 
warped  by  a  desire  to  promote  the  cause  in  which  they 
are  enlisted."4  The  Supreme  Court  of  Mississippi 
declares  that  it  "ought  to  be  received  and  weighed 
cautiously  by  the  jury."5 

1  Harvey  v.  Evansville  Steam  Packet  Co.,  Fed.  Cas.,  No.  6,  179. 

1  The  Tracy  Peerage,  10  Cl.  &  P.,  154,  190. 

*  Roberts  v.  New  York  El.  R.  Co.,  128  N.  Y.,  455. 

4  Ferguson  t.  Hubbell,  97  N.  Y.,  507,  514,  per  Earl,  J. 

5  Moye  v.  Herndon,  30  Miss..  118. 


280     PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

The  Supreme  Court  of  Ohio  say:  "Medical  testi- 
mony is  of  too  much  importance  to  be  disregarded. 
When  delivered  with  caution  and  without  bias  in 
favor  of  each  party,  or  in  aid  of  some  speculation  and 
favorite  theory,  it  becomes  a  salutary  means  of  pre- 
venting even  intelligent  juries  from  following  a  popular 
prejudice,  and  deciding  a  cause  on  inconsistent  and 
unsound  principles.  But  it  should  be  given  with  great 
care  and  received  with  the  utmost  caution,  and,  like 
the  opinions  of  neighbors  and  acquaintances,  should 
be  regarded  as  of  little  weight  if  not  well  sustained 
by  reason  and  facts  that  admit  of  no  misconstruc- 
tions, and  supported  by  authority  of  acknowledged 
credit."1 

The  Supreme  Court  of  South  Carolina  has  said 
that  "all  testimony  founded  upon  opinion  merely  is 
weak  and  uncertain  and  should  in  every  case  be  weighed 
with  great  caution."2  The  opinions  of  physicians  given 
in  answer  to  hypothetical  questions  are  not  to  be 
rejected  or  accepted  by  the  jury  at  will,  but  are  to  be 
weighed  and  considered  the  same  as  any  other  evi- 
dence. After  weighing  such  testimony  the  jury  may 
disbelieve  it  when  improbable,  discredited,  or  dis- 
proved, or  when  they  believe  that  the  witness  testified 
falsely  or  mistakenly.3 

An  examination  of  the  cases  shows  many  different 
theories  as  to  the  weight  to  be  given  the  testimony 
of  medical  experts.  The  view  taken  by  the  Circuit 
Court  of  the  United  States  seems  to  us  to  be  the  proper 
view.  The  jury  in  that  case  were  charged  as  follows: 
"The  value,  however,  of  the  opinion  of  experts  differs 
largely  in  degree  in  different  cases.  It  is  of  first  im- 

1  Clark  v.  State,  12  Ohio,  483. 

2  Benedict  v.  Flanigan,  18  S.  C.,  506. 

3  Lubbee  v.  Hilgert,  135  N.  Y.  App.  Div.,  227. 


/7/r.S7(7.I.VS  TO  TESTIFY  AS  EXPERTS          281 

portance  that  the  facts  upon  which  they  are  founded 
be  satisfactorily  established.  In  the  present  case  it 
does  not  occur  to  us  that  there  was  any  dispute  as 
to  the  facts  in  relation  to  which  the  expert  spoke. 
It  is  next  of  importance  that  the  integrity  and  skill 
of  the  witness  be  known.  I  may  add  here,  that  no 
question  is  made  of  the  competency  of  the  witness 
who  has  testified  here  or  of  the  confidence  due  to  his 
integrity.  But  this  is  not  all.  Where  the  expert 
states  precise  facts  in  science,  as  ascertained  and 
settled,  or  states  the  necessary  and  invariable  conclu- 
sion which  results  from  the  facts  stated,  his  opinion 
is  entitled  to  great  weight.  Where  he  gives  only  the 
probable  inference  from  the  facts  stated,  his  opinion 
is  of  less  importance,  because  it  states  only  a  proba- 
bility. When  the  opinion  is  speculative,  theoretical, 
and  states  only  the  belief  of  the  witness,  while  yet 
vSome  other  opinion  is  consistent  with  the  facts  stated, 
it  is  entitled  to  but  little  weight  in  the  minds  of  the 
jury. 

'Testimony  of  experts  of  this  latter  description, 
and  especially  where  the  speculative  and  theoretical 
character  of  the  testimony  is  illustrated  by  opinions 
of  experts  on  both  sides  of  the  question  is  justly  the 
subject  of  remark,  and  has  often  been  condemned  by 
judges  as  of  slight  value.  Like  observations  apply- 
in  a  greater  or  lesser  degree  to  the  opinions  of  wit- 
nesses who  are  employed  for  a  purpose,  and  paid  for 
their  services,  who  are  brought  to  testify  as  witnesses 
for  their  employers.  This  last  observation  has  no 
pertinency  to  the  present  case,  and  is  only  made 
for  the  purpose  of  explaining  the  reason  why  testi- 
mony of  this  sort  has  been  the  subject  sometimes  of 
such  comments  as  have  been  made  in  your  hearing. 
This  condemnation  is  not  always  applicable.  Often 


282    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

it  would  be  unjust.  Where  an  expert  of  integrity  and 
skill  states  conclusions  which  are  the  necessary  or 
even  the  usual  results  of  the  facts  upon  which  his 
opinion  is  based,  the  evidence  should  not  be  lightly 
esteemed  or  hastily  discredited.  But,  after  all,  the 
question  of  fact  in  issue  is  not  for  the  expert  to  decide. 
The  question  of  fact  in  this  case  is  neither  for  the  expert 
nor  for  the  court.  It  is  for  you  to  decide,  upon  your 
sound  judgment,  under  the  oaths  which  you  have 
taken,  to  render  a  verdict  according  to  the  whole  of 
the  evidence  submitted  to  you  for  consideration."1 
(r)  Expert's  Fees. — While  a  physician  and  surgeon 
may  be  required  to  attend  as  a  witness,  and  to  testify 
to  facts  as  other  witnesses,  and  without  other  com- 
pensation than  that  provided  by  the  law  for  other 
witnesses,  yet  he  cannot  be  required  to  testify  as  to  his 
professional  opinion,  over  his  objection  to  do  so  without 
the  compensation  of  a  professional  fee;  and  his  refusal 
to  so  testify  unless  so  compensated  is  not  a  contempt. 
For  "if  physicians  or  surgeons  can  be  compelled  to 
render  professional  services  by  giving  their  opinions 
on  the  trial  of  criminal  causes,  without  compensation, 
then  an  eminent  physician  or  surgeon  may  be  com- 
pelled to  go  to  any  part  of  the  State,  at  any  and  all 
times,  to  render  such  service  without  other  compensa- 
tion than  such  as  he  may  recover  as  ordinary  witness 
fees,  from  the  defendant  in  the  prosecution,  depending 
upon  his  conviction  and  ability  to  pay.  This,  under 
the  general  principles  of  law  and  the  constitution  of 
the  State,  he  cannot  be  compelled  to  do.  If  he  knows 
facts  pertinent  to  the  case  to  be  tried,  he  must  attend 
and  testify  as  any  other  witness.  In  respect  to  facts 
within  his  knowledge,  his  qualifications  as  a  physician 
and  surgeon  are  entirely  unimportant.  Not  so,  how- 

1  Gay  v.  Union  Mut.  L.  Ins.  Co.,  9  Blatch,  142. 


rilYSlCIANS  TO  TESTIFY  AS  EXPERTS          283 

ever,  in  respect  to  his  professional  opinions.  In  giving 
them  he  is  performing  a  particular  service  which  cannot 
be  demanded  of  him  without  compensation."1  In  the 
Indiana  case  it  was  said:  'The  position  of  a  medical 
witness  testifying  as  an  expert  is  much  more  like  that 
of  a  lawyer  than  that  of  an  ordinary  witness  testify- 
ing to  facts.  The  purpose  of  his  service  '^  pf)t  tn  pmvp 
farts  jp  the  cause  hut  to  affi  the  court  nr  jyry  in  arriving 

at  a  proper  conclusion  from  facts  otherwise  proved. 

The  property  which  an  attorney  or  physician  may  have 
in  his  professional  knowledge,  if  it  is  to  be  regarded  in 
the  light  of  property,  may  not  be  of  a  tangible  cor- 
poreal character;  it  maybe  neither  goods  nor  chattels, 
lands  nor  tenements,  but  it  may  nevertheless  be 
property.  A  party  who  has  a  copyright  in  a  book 
has  a  property  which  consists  not  in  the  right  to  the 
book  merely,  but  in  the  exclusive  right  of  multiplying 
copies  thereof."2 

In  a  New  York  case  the  court  said:  'There  is  a 
wide  distinction  between  a  witness  called  to  depose 
to  a  matter  of  opinion  depending  upon  his  skill  in  a 
particular  profession  or  trade  and  a  witness  who  is 
called  to  depose  to  facts  which  he  saw.  When  he  has 
facts  within  his  knowledge,  the  public  have  a  right 
to  those  facts,  to  be  used  by  a  court  of  justice  in  civil 
or  criminal  trials;  but  the  skill  and  professional  expe- 
rience of  a  man  are  so  far  his  individual  capital  and 
property  that  he  cannot  be  compelled  to  bestow  them 
gratuitously  upon  any  party;  that  the  public,  no 
more  than  a  private  person,  has  a  right  to  extort 
services  from  him  in  the  line  of  his  profession  or  trade 
without  adequate  compensation."3 

1  Buchman  v.  State,  95  Ind.,  i;  Ex  parte  Clark,  104  Mass.,  537;  State  ». 
Dollar,  66  N.  C.,  626;  In  re  Roelker,  I  Sprague,  276;  United  States  v.  Howe, 
12  Cent.  Law  Jour.,  193. 

1  Buchman  v.  State,  59  Ind.,  I. 

1  People  v.  Montgomery,  13  Abb.  Pr.  (N.  Y.),  N.  S..  207. 


284    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

In  opposition  to  the  rule  we  have  laid  down  as  to 
what  seems  to  us  to  be  the  reasonable  rule  and  the  one 
adopted  by  the  federal  courts,  is  that  adopted  by  a 
number  of  States  and  which  holds  that  a  professional 
witness  who  attends  in  obedience  to  an  ordinary 
subpena  may  be  compelled  to  express  his  opinion 
on  hypothetical  questions  or  on  general  medical  or 
toxicological  questions  as  an  ordinary  witness  is 
compelled  to  testify  on  questions  of  fact  within  his 
knowledge,  and  for  the  same  statutory  fees.1 

The  courts  holding  this  view  base  it  upon  the  same 
principle  which  justifies  the  bringing  of  the  mechanic 
from  his  workshop,  the  merchant  from  his  storehouses, 
the  broker  from  'change,  or  the  lawyer  from  his  engage- 
ments, to  testify  in  regard  to  some  matter  which  he 
has  learned  in  the  exercise  of  his  art  or  profession. 
The  statute  of  many  States  have  provided  that  a 
witne'ss  who  is  called  as  an  expert  cannot  be  compelled 
to  testify  without  payment  of  extra  compensation, 
while  the  statutes  of  other  States  provide  for  exactly 
the  contrary.  So  that  the  safe  course  to  follow  is  to 
ascertain  what  one's  own  State  legislature  has  said  or 
done  on  the  subject. 

In  any  event  if  a  physician  wishes  to  receive  extra 
compensation,  he  should  demand  the  same  before 
answering  the  questions  put  to  him;  but  in  order  to 
entitle  a  medical  expert  to  fees  he  must  show  that  he 
was  called  as  such,  and  to  testify  to  an  opinion  founded 
on  his  special  study  and  experience.2 

It  is  universal  law  that  the  witness  be  tendered 
in  advance  of  the  trial,  and  at  the  time  of  the  serving 

1  Ex  parte  Dement,  53  Ala.,  389;  Flinn  v.  Prairie  Co.,  60  Ark.,  204;  Larimer 
County  Comrs.  v.  Lee,  3  Colo.  App.,  177;  Wright  v.  People,  112  Ills.,  540; 
State  v.  Teipner,  36  Minn.,  532,  537;  Com.  v.  Higgins,  5  Kulp  (Pa.),  269; 
Summers  v.  State,  5  Tex.  App.,  374. 

2  Snyder  v.  Iowa  City,  40  Iowa,  646. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS 

of  the  subpena,  the  amount  of  the  expense  to  which 
he  will  be  put  in  attending  the  trial,  and  on  demand 
of  such  payment,  at  the  time  of  service  of  process, 
and  refusal,  the  witness  is  not  bound  to  attend.  If, 
however,  he  does  not  demand  his  expenses  when  served 
with  process,  but  voluntarily  attends  the  trial,  he  can- 
not refuse  to  testify  when  called  to  the  stand,  on  the 
ground  that  his  expenses  have  not  been  paid. 

The  law  of  tender  in  civil  suits  differs  in  the  different 
States,  but,  as  a  general  rule,  in  criminal  cases  neither 
the  State  nor  the  defence  is  required  to  tender  the 
witness'  expenses  in  advance. 

A  physician  called  as  an  expert  who  testifies  under 
a  contract  that  he  shall  receive  a  certain  per  cent,  of 
the  judgment  obtained  by  the  plaintiff,  cannot  recover 
for  the  same,  as  such  an  agreement  is  illegal  from  its 
manifest  tendency  to  prevent  justice.1 

(s)  Hypothetical  Questions. — A  hypothetical  ques- 
tion is  one  propounded  to  a  witness  detailing  what  the 
questioner  claims  are  the  facts  proved  in  the  case  and 
requesting  the  opinion  of  the  witness  as  to  the  probable 
result  of  those  facts  or  their  effect  upon  the  person 
under  investigation.2 

The  advantage  of  the  hypothetical  form  of  question 
is  that  it  gets  before  the  jury  exactly  the  facts  upon 
which  the  opinion  is  founded.  Where  an  expert 
witness  has  heard  the  evidence,  it  might  be  thought 
that  it  would  be  simpler  to  ask  his  opinion  upon  the 
facts  as  proved;  but  this  would  be  objectionable,  for 
the  reason  that  the  jury  alone  are  to  determine  what 
facts  are  proved.  To  leave  it  to  the  witness  to  do  this, 
and  to  express  his  opinion  upon  such  facts  as  he  may 
deem  proved,  is  objectionable,  for  the  reason  that  in  the 

1  Laffin  v.  Billington,  86  Supp.  (N.  Y.),  267. 
1  Peterson  v.  R.  R.  Co.,  38  Minn.,  51.2. 


286    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

minds  of  the  jury  a  different  state  of  facts  may  seem 
to  have  been  proved  from  the  facts  which  are  in,  the 
mind  of  the  witness.  Under  these  circumstances  the 
jury  cannot  tell  what  weight  the  opinion  is  entitled  to. 
The  statement  of  the  facts  constituting  the  hypo- 
thetical question  must  comprise  those  facts  upon 
which  an  opinion  is  wanted,  stated  as  the  party  putting 
the  question  conceives  them  to  have  been  proved  by 
the  evidence.1  The  nearer  they  come  to  the  facts  as 
they  appear  to  the  jury,  the  greater  the  weight  which 
the  witness'  opinion  will  have. 

It  is  not  necessary  that  the  question  include  the 
substance  of  all  the  testimony  given.2  All  that  is 
required  is  that  the  question  shall  be  a  fair  state- 
ment of  the  salient  facts  upon  which  an  opinion 
is  wanted.  The  prevailing  doctrine  is  that  the 
witness  cannot  be  asked  his  opinion  upon  the  evi- 
dence in  the  case  as  he  has  heard  it  given.  This 
would  leave  to  him  the  determination  of  what  facts 
he  would  consider  proved.  On  these  facts  he  would 
base  his  opinion,  and  give  what  in  substance  would 
be  a  verdict  on  the  evidence,  which  would  be  highly 
objectionable.  Not  only  must  a  hypothetical  question 
put  to  a  medical  expert  be  based  upon  the  facts  in 
evidence,  but  it  must  not  give  a  false  coloring  to  those 
facts  by  unduly  emphasizing  some  of  them  or  not 
mentioning  others.3 

The  form  of  the  hypothetical  question  has  been 
set  forth  by  the  Supreme  Court  of  Vermont  in  an 
opinion,  from  which  we  quote:  "A  study  of  the  various 
cases  will  show  that  the  form  of  the  question  is  modified 
and  shaped  by  the  courts;  whether  it  states  facts,  or 

1  People  v.  Tuczkewitz,  149  N.  Y.,  240;  43  N.  E.,  548;  Abbot  v.  Heath,  84 
Wis.,  314;  54  N.  W.,  574. 

2  Stearns  v.  Field,  90  N.  Y.,  640. 

3  Miller  v.  Leib,  109  Md.,  414;  72  All.,  466. 


PHYSICIANS  TO  TESTIFY  AS  EXPERTS          287 

puts  facts  hypothetically,  or  refers  to  the  testimony 
of  witnesses  as  being  true,  so  as  to  give  the  witness  no 
occasion  or  opportunity  to  decide  upon  the  evidence, 
or  mingle  his  own  opinion  of  the  facts,  as  shown  by  the 
evidence,  with  the  facts  upon  which  he  is  to  express 
a  professional  opinion.  This  is  the  important  point, 
and  to  secure  this  various  forms  of  inquiry  have  been 
adopted.  Hypothetical  questions  may  be  so  put  as 
to  require  the  witness  to  decide  upon  the  evidence, 
to  determine  which  side  preponderates,  and  to  find 
conclusions  from  the  evidence,  in  order  to  reconcile 
conflicting  facts.  Such  questions,  though  hypothetical, 
are  as  clearly  improper  as  if  they  directly  sought  the 
opinion  of  the  witness  on  the  merits  of  the  case.  Hence 
in  framing  such  questions,  care  should  be  taken  not 
to  involve  so  much,  or  so  many  facts  in  them,  that  the 
witness  will  be  obliged  in  his  own  mind  to  settle  other 
disputed  facts  in  order  to  give  his  answer."1  For 
instance,  it  is  improper  to  ask  a  medical  expert  whether 
a  person  possessed  sufficient  mental  capacity  to  enable 
him  to  make  a  will.2  An  opinion  of  an  expert  witness 
cannot  be  based  upon  opinions  expressed  by  other 
experts.  Facts  and  not  opinions  must  be  assumed 
in  the  questions.  If  it  were  otherwise,  opinions  might 
be  built  upon  opinions  of  experts  and  the  substantial 
facts  driven  out  of  the  case.3  As  was  said  in  a  Maryland 
case:  "Now,  while  an  expert  may  give  his  opinion 
upon  facts  assumed  to  have  been  established,  it  would 
be  against  every  rule  of  principle  of  evidence  to 
allow  him  to  state  his  opinion  upon  the  conclusions 
and  inferences  of  other  witnesses."4 

1  Fairchild  v.  Bascomb,  35  Vt.,  415. 

1  Farrell  v.  Brenner,  32  Mo.,  328;  May  v.  Bradlee,  127  Mass.,  414;  White 
v.  Bailey,  10  Mich.,  155. 

1  Louisville,  etc.,  R.  Co.  v.  Falvey,  104  Ind.,  409;  Preston  v.  Ocean  S.  S. 
Co.,  33  App.  Div.  (N.  Y.),  193. 

*  Williams  v.  State,  64  Md.,  384. 


288    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

It  is  the  duty  of  the  court  to  determine  whether 
a  question  put  to  an  expert  witness  is  one  proper  to 
be  put,  and,  when  put,  to  see  that  it  is  in  such  shape 
as  to  present  the  facts  upon  which  it  is  founded  clearly 
and  intelligibly,  and,  if  necessary,  to  have  it  reduced 
to  writing,  to  enable  the  witness  to  answer  intelligently 
and  the  opposite  counsel  to  cross-examine  or  offer 
testimony  to  meet  it;  and  so  long  as  it  contains  no 
irrelevant  matter  not  proper  to  support  an  opinion 
or  no  statements  of  facts  not  in  evidence  or  assumed 
to  exist  for  the  purpose  of  the  question  it  may  be  as 
long  as  counsel  desire  to  make  it.1 

The  hypothetical  question  submitted  in  the  Thaw 
trial  by  the  prosecution  contained  fifteen  thousand 
words.  A  hypothetical  question  in  one  case,  in  which 
the  issue  was  as  to  the  mental  condition  of  the  testator, 
contained  twenty  thousand  words,  and  was  answered 
"I  don't  know."  As  an  interesting  illustration  of  the 
hypothetical  question  we  have  taken  the  liberty  to 
set  out  the  one  propounded  by  the  defence  to  the 
experts  in  the  trial  of  Guiteau,  that  propounded  by 
District  Attorney  Jerome  during  the  Thaw  trial  to 
six  different  insanity  experts  being  of  too  great  length 
to  permit  of  its  reproduction  here. 

"Q.  Assume  it  to  be  a  fact  that  there  was  strong 
hereditary  taint  of  insanity  in  the  blood  of  the  prisoner 
at  the  bar;  also,  that  at  about  the  age  of  thirty-five 
years  his  own  mind  was  so  much  deranged  that  he 
was  a  fit  subject  to  be  sent  to  an  insane  asylum;  also, 
that  at  different  times  from  that  date  during  the  next 
succeeding  five  years  he  manifested  such  decided  symp- 
toms of  insanity,  without  simulation,  that  many 
different  persons  conversing  with  him,  and  observing 
his  conduct,  believed  him  to  be  insane;  also,  that 

1  Deig  Exr.  v.  Morehead,  no  Ind.,  451,  11  N.  E.,  458. 


PRIVILEGED  COMMUNICATIONS  289 

during  the  month  of  June,  1881,  at  about  the  expira- 
tion of  said  term  of  five  years,  he  honestly  became 
dominated  by  the  idea  that  he  was  inspired  of  God  to 
remove  by  death  the  President  of  the  United  States; 
also,  that  he  committed  the  act  of  shooting  the  Presi- 
dent under  what  he  believed  to  be  a  divine  command, 
which  he  was  not  at  liberty  to  disobey,  and  which 
belief  amounted  to  a  conviction  that  controlled  his 
conscience  and  overpowered  his  will  as  to  that  act, 
so  that  he  could  not  resist  the  mental  pressure  upon 
him;  also,  that  immediately  after  the  shooting  he 
appeared  calm  and  as  one  relieved  by  the  performance 
of  a  great  duty;  also,  that  there  was  no  other  adequate 
motive  for  the  act  than  the  conviction  that  he  was 
executing  the  divine  will  for  the  good  of  his  country. 
Assuming  all  these  propositions  to  be  true,  state 
whether,  in  your  opinion,  the  prisoner  was  sane  or 
insane  at  the  time  of  shooting  President  Garfield? 

"A.  He  was  unquestionably  insane,  in  my  opinion." 
The  jury  thought  otherwise,  however,  and  he  was, 
as  we  all  know,  convicted  and  hanged. 

(/)  Reexamination. — After  a  witness  has  been  cross- 
examined  by  opposing  counsel,  he  may  be  reexamined 
by  the  attorney  who  called  him  and  correct  any  false 
impressions  he  may  have  left  with  the  jury  by  reason 
of  his  cross-examination. 


2.  PRIVILEGED   COMMUNICATIONS 

(a)  In  General. — Communications  from  a  patient  to 
his  physician  were  not  privileged  at  common  law;1 
but  now  most  States  have  enacted  statutes  forbidding 
the  disclosure  in  evidence,  against  the  will  of  the 

1  Barber  v.  Merriam,  n  Allen,  322;  165  N.  Y.,  159. 
19 


290    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

patient,  of  information  acquired  by  physicians  in  their 
professional  capacity.1 

These  statutes  have  been  enacted  on  the  ground 
of  public  policy,  for  the  purpose  of  facilitating  and 
making  safe,  full,  and  confidential  disclosure  by 
patient  to  physician  of  all  facts,  circumstances,  and 
symptoms,  untrammeled  by  apprehension  of  their 
subsequent  enforced  disclosure  and  publication  on  the 
witness  stand,  to  the  end  that  the  physician  may 
form  a  correct  opinion,  and  be  enabled  safely  and 
efficaciously  to  treat  his  patients.2  The  words  "privi- 
leged communications'1  are  sometimes  used  in  a  sense 
radically  different  than  that  in  which  they  are  used 
here.  In  libel  and  slander  actions  a  defendant  may 
plead  that  the  words  spoken  or  written  were  privileged ; 
that  is,  that  they  were  uttered  or  spoken  in  good  faith 
upon  some  subject  matter  in  which  the  party  communi- 
cating has  an  interest,  or  in  reference  to  which  he  has 
a  duty,  and  spoken  or  written  to  a  person  having  a 
corresponding  interest  or  duty,  and  if  this  is  true  he 
will  not  be  liable  in  damages,  although  otherwise  the 
words  would  be  slanderous. 

Where  a  physician  upon  an  examination  of  an 
unmarried  female  patient  found,  as  he  believed,  that 
she  was  pregnant,  his  communication  of  that  fact  to 
others  than  those  reasonably  entitled  to  know  is  not 
a  privileged  communication,  and  if  false  will  render 
him  liable  in  damages.3  Where  it  is  the  prescribed  duty 
of  a  physician  to  report  upon  any  matter,  then  what 
he  may  report  without  malice  and  with  a  reasonable 
belief  in  its  truth  is  privileged.  As  where  a  law 
requires  every  physician  to  report  to  the  board  of 

1  See  the  statutes  of  the  several  States. 

2  Boyle  v.  N.  W.  Mut.  R.  Asso.,  95  Wis.,  312;  In  re  Will  of  Bruendl,  102 
Wis.,  45. 

3  Alpin  v.  Morton,  21  Ohio  St.,  536. 


PRIVILEGED  COMMUNICATIONS  *  291 

health  all  cases  of  smallpox  coming  to  his  knowledge 
and  he  erroneously  but  without  malice  reports  his 
patient  so  diseased,  whereby  she  is  taken  from  her 
home  to  the  smallpox  hospital,  he  will  not  be  liable 
to  an  action  at  the  suit  of  the  patient.1 

(b)  Necessity  of  Existence  of  Relation  of  Physician 
and  Patient. — (i)  In  General. — It  is  conceded  that  in 
order  that  the  knowledge  acquired  by  a  physician 
in  the  sick  chamber  should  be  protected,  the  relations 
of  physician  and  surgeon  must  exist.2  This  proposi- 
tion of  law  seems  simple  enough  and  we  would  be 
tempted  to  leave  it  without  more  discussion,  but  we 
know  you  will  be  asking  yourselves,  When  does  the 
relationship  of  physician  and  patient  exist  so  as  to 
make  the  information  gained  by  the  former  privileged. 
To  give  some  working  basis  to  determine  this  question 
for  yourselves  we  will  set  out  the  facts  in  several  cases, 
where  this  question  has  been  determined  by  the 
courts.  It  has  been  held  that  communications  to  a 
physician  sent  to  a  woman  by  the  public  prosecutor 
after  discovering  that  an  abortion  has  been  committed 
on  her  are  privileged  when  she  accepts  his  services  as 
a  physician  and  he  renders  them  as  such.3  On  the 
same  ground  it  has  been  held  that  where  a  defendant 
in  a  suit  for  personal  injuries  sends  his  physician  to 
the  plaintiff  to  make  an  examination  for  the  purpose 
of  testifying  as  to  the  plaintiff's  condition,  and  the 
physician  undertakes  to  treat  the  plaintiff,  the  physi- 
cian is  incapable  of  disclosing  the  information  thus 
obtained.4  Professional  treatment  by  a  physician 

1  Brown  p.  Purdy,  54  Sup.  Ct.  (22  J.  &  S.),  109. 

1  Clark  v.  State,  8  Kan.  App.,  782;  Weitz  v.  The  Mound  City  Ry.  Co.,  53 
Mo.  App.,  39;  People  v.  Murphy,  101  N.  Y.,  126;  People  ».  Koerner,  154 
N.  Y.,  355- 

3  People  v.  Murphy,  101  N.  Y.,  128. 

4  Weitz  v.  Mound  City  Ry.  Co.,  53  Mo.  App.,  39. 


292    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

against  the  protest  of  a  patient  who  is  sick  unto  death 
is  in  fact  treated  by  a  physician  as  a  patient.1 

(2)  Necessity  of  Person  Consulted  being  a  Physician. 
— The    confidence    which    is    protected    is    that    only 
which    is    given    to    a    professional    physician    during 
a  consultation  with  a  view  to  a  curative  treatment; 
for  it  is  that  relation  only  which  the  law  desires  to 
facilitate. 

Hence  the  person  consulted  must  be  a  professional 
physician  in  the  usual  sense  of  the  word.  This  does 
not  include  a  veterinary  surgeon;  nor  a  pharmacist; 
nor  a  dentist.2  Although  the  modern  recognition  of 
dental  science  as  strictly  a  branch  of  medical  science 
might  here  have  justified  the  opposite  conclusion. 

A  practitioner  of  any  branch  or  school  of  medical 
science,  recognized  as  such  by  the  reputable  medical 
profession,  is  included;  some  of  the  statutes  define  the 
privileged  class  as  "licensed"  practitioners.  A  surgeon 
is  in  any  case  within  the  definition.  How  far  the 
class  should  be  extended  in  these  days  of  pretensions 
and  successful  quackery  may  become  difficult  to 
determine.  The  fact  that  a  duly  licensed  physician 
has  failed  to  register  does  not  prevent  the  information 
from  being  privileged.3 

(3)  Necessity  of  Physician  Acting  Professionally.— 
The  consultation  with  a  professional  physician  must 
be  had  in  his  professional  character  at  the  time.     A 
consultation,  therefore,  for  some  purpose  other  than 
that  of  ultimate  curative  or  alleviate  treatment  is  not 
privileged ;  nor  is  a  communication  made  at  some  time 
when   the   professional   relation   is  not   pending.     An 

1  Meyer  v.  Knights  of  Pythias,  178  N.  Y.,  64. 

2  Hendershot  v.  Tel.  Co.,  106  Iowa,  529;  76  N.  W.,  828;  Brown  v.  R.  Co., 
66  Mo.,  597;  People  v.  De  France,  104  Mich.,  563;  62  N.  W.,  709;  Wiel  v. 
Cowles,  45  Hun.  (N.  Y.),  307. 

»  McGillicuddy  v.  Farmers'  L.  &  T.  Co.,  26  Mis.  (N.  Y.),  55. 


293 

autopsy  after  decease  is  of  course  not  privileged.1 
A  physician  acts  in  a  professional  capacity  when  after 
examining  a  patient  he  decides  that  neither  medicine 
nor  advice  are  needed,  and  therefore  gives  neither.2 

Any  information  which  is  necessary  to  enable  a 
physician  who  is  treating  a  patient  sick  unto  death,  but 
against  his  will,  to  act  as  such  physician  is  acquired 
"in  attending  a  patient  in  a  professional  capacity" 
and  is  protected  from  disclosure.3  Where  a  physician 
attends  for  consultation  by  request  of  another  physi- 
cian, he  attends  in  a  professional  capacity.4  A  phy- 
sician may  testify  as  to  facts  in  regard  to  a  testator's 
mental  capacity,  learned  or  observed  by  him  in  a 
conversation  with  him,  after  the  services  were  rendered, 
when  he  called  upon  him  to  collect  his  bill,  as  the  call 
was  in  relation  to  a  financial  matter,  and  in  no  manner 
akin  to  one  made  in  the  course  of  professional  business.5 
When  a  physician  is  sent  by  a  prosecuting  officer  to 
make  a  report  upon  the  sanity  of  a  prisoner,  if  he  does 
not  treat  or  prescribe  for  the  subject  the  statements 
of  the  latter  are  not  privileged.6  Even  though  a 
physician  is  sent  for  the  sole  purpose  of  examining 
as  to  sanity,  if  he  prescribes  for  the  prisoner  during 
the  visit,  the  relation  of  physician  and  patient  is 
thereby  created  and  the  disclosures  made  are  within 
the  statute.7  In  a  New  York  case  it  was  held  that 
the  fact  that  the  physician  was  selected  and  sent  by 

1  Bower  v.  Bower,  142  Ind.,  194;  Herries  v.  Waterloo,  114  la.,  374;  Harrison 
r.  R.  Co.,  116  Cal.,  156;  47  Pac.,  1019;  People  ».  Austin,  199  N.  Y.,  446. 

1  Grattan  r.  Met.  L.  Ins.  Co.,  24  Hun.,  43. 

*  Meyer  v.  Knights  of  Pythias,  178  N.  Y.,  64. 

4  Renihan  v.  Dennin,  103  N.  Y.,  573. 

6  Bower  v.  Bower,  142  Ind.,  194. 

'  People  v.  Sliney,  137  N.  Y.,  570. 

'  Freel  v.  Market  St.  C.  Ry.  Co.,  97  Cal.,  40;  Colorado  Fuel  and  Iron  Co. 
».  Cummings,  80  Colo.  App.,  541;  Weitz  r.  Mound  City  Ry.  Co.,  53  Mo. 
App.,  39- 


294    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

the  district  attorney  to  attend  the  patient,  after  the 
commission  of  a  crime  against  her  person,  did  not 
affect  the  question  of  privilege.1  A  physician  who 
treats  a  patient  for  injuries  received  from  a  fall  is 
incompetent  to  testify  to  a  tuberculous  condition  of 
the  knee  which  necessitated  a  subsequent  amputation 
of  the  patient's  leg.2  The  attending  physician  of  an 
assured  is  incompetent  to  testify  as  to  facts  within 
his  knowledge  because  of  the  confidential  relation 
existing  between  him  and  his  patient,  and  his  partner 
is  also  incompetent  to  testify  as  to  information  secured 
when  the  assured  was  in  consultation"  with  the  other 
in  the  office  of  the  firm.3  The  law  governing  the 
relations  of  physician  and  patient  does  not  apply 
where  one  insured  under  an  accident  policy  is  examined 
by  the  physician  of  the  insurer  as  authorized  by  the 
policy.4 

(c)  What  Matters  are  Privileged. — (i)  In  General  — 
If  the  knowledge  is  acquired  while  he  is  professionally 
attending  the  patient  the  physician  can  make  no  dis- 
closure.    This  is  true  whether  the  knowledge  is  com- 
municated by  the  words  of  the  patient  or  is  gained  by 
observation,  or  is  the  result  of  a  professional  examina- 
tion.J  The  law  forbids  the  physician  from  disclosing 
what  he  learns  in  the  sick  room  no  matter  by  what 
/  method  he  acquires  his  knowledge.5 
L      Thus  whenever  an  injured  party  consults  a  physi- 

/  cian  as~"physician,  and  discloses  to  him  his  physical 
condition,  and  thus  enables  him  to  obtain  informa- 
tion which  as  an  ordinary  person  he  would  not  have 

I     obtained,  such  physician  is  prohibited  from  testifying 

1  People  v.  Murphy,  101  N.  Y.,  126. 

2  Smart  v.  Kansas  City  (Mo.),  i ;  105  S.  W.,  709. 

3  The  JEtna  Life  Insurance  Co.  v.  Deming,  123  Ind.,  384. 

4  Tompkins  v.  Pacific  Mut.  Life  Ins.  Co.,  53  W.  Va.,  479. 

6  Heuston  v.  Simpson,  115  Ind.,  62;  Williams  v.  Johnson,  112  Ind.,  273. 


PRIVILEGED  COMMUNICATIONS  295 

with    reference    to    the    knowledge    thus    obtained, 
except  with  the  consent  of  the  injured  party.1 

(2)  Health   of   Patient. — A    physician    may    testify 
as  to  the  health  of  his  patient.2    He  will  not  be  allowed 
to  testify  as  to  his  patient's  previous  state  of  health 
where  his  only  knowledge  is  acquired  from  an  inspec- 
tion  of  and   conversation    with   the    patient    as    his 
physician.3 

(3)  Nature  of  Ailment. — A  physician  cannot  testify 
as  to  the  nature  of  the  disease  with  which  the  patient 
was  afflicted  or  whether  he  had  advised  the  patient 
of  its  nature.4 

(4)  Prescriptions  and  Certificates. — The  prescriptions 
of  a  physician  have  been  held  inadmissible  in  evidence 
when  it  has  been  shown  that  the  patient  was  suffering 
from  one  disease  only  during  the  time  of  his  treatment 
by  such   physician.5     The  death  certificates  made  by 
physicians  and  filed,  pursuant  to  law,  with  the  health 
departments,  are  inadmissible  to  prove  the  cause  of 
death,6  and  the  original  certificate,   as  to  the  cause 
of  death  of  certain  relatives  of  the  insured  filed  by  the 
physician  in  attendance  during  their  last  illness,  with 
a  city  board  of  health  is  inadmissible  in  an   action 
upon   a  policy  of  life  insurance  defended   upon   the 
ground  of  warranty  that  such  relatives  had  not  died 
of  consumption.7    A  physician  examined  as  a  judgment 
debtor  in  supplementary  proceedings  cannot  be  com- 

1  Doran  v.  C.  R.  &  Marion  City  Ry.  Co.,  117  la.,  442. 
1  Metropolitan  Life  Ins.  Co.  r.  Howie,  68  Ohio  St.,  614. 

*  Barker  v.  Cunard  Steamship  Co.,  91  Hun.,  498. 

*  Nelson  v.  Nederland  Life  Ins.  Co.,  no  la.,  600;  Lamminian  r.  Citizens' 
Street  R.  Co.,  112  Mich.,  602;  Briggs  v.  Briggs,  20  Mich.,  34. 

1  Nelson  ».  Nederland  Life  Ins.  Co.,  no  la.,  600. 

*  Robinson  v.  Supreme  Commandery,  Order  of  Golden  Cross,  77  App.  Div., 
215;  Buffalo  Loan,  Trust  &  Safe  Deposit  Co.  v.  Knights  Templar  &  Masonic 
Mut.  Aid  Assoc.,  126  N.  Y.,  450;  27  N.  E.,  942;  Sovereign  Camp  of  Woodmen 
of  the  World  r.  Grandon,  89  N.  W.,  448. 

1  Davis  ».  Supreme  Lodge,  Knights  of  Honor,  165  N.  Y.,  159;  58  N.  E.,  891. 


296    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

pelled  to  deliver  to  the  receiver  his  original  books  of 
account  containing  confidential  communications  re- 
ceived in  the  course  of  his  attendance  upon  his  patients.1 

(5)  Hospital  Records  as  Privileged  Communications.— 
An  attending  physician  of  a  hospital  who  is  keeper  of 
and  has  charge  of  the  records  of  the  institution  which 
are  required  to  be  kept  by  ordinance,  cannot  testify 
as  to  the  diagnosis  of  a  patient's  case  as  shown  by 
such  physician's  record.2 

It  was  held  in  a  case  where  an  insurance  company 
sought  to  introduce  in  evidence,  in  an  action  against 
it  to  recover  upon  a  policy,  the  register  of  the  patients, 
kept  at  a  hospital,  with  the  entries  relating  to  the 
deceased,  and  made  by  the  superintendent  of  the 
hospital  in  charge  in  the  usual  Course  of  business  at 
the  hospital,  and  which  showed  when  the  patient 
entered  and  departed  and  the  nature  of  the  disease, 
that  the  evidence  could  not  be  admitted,  as  the  infor- 
mation from  which  the  entries  were  made  was  furnished 
by  a  physician  in  charge  of  the  case,  after  he  had 
had  an  opportunity  to  observe  the  case  long  enough 
and  knew  sufficiently  about  the  patient  to  determine 
the  disease,  the  court  saying:  "To  permit  these 
entries  to  be  introduced  in  'evidence  was  to  disregard 
in  a  very  noticeable  manner  the  rule  forbidding  the 
introduction  of  hearsay  testimony  as  well  as  the 
spirit  of  the  statute  which  prohibits  the  examination 
of  a  physician  as  to  certain  matters  without  the 
consent  of  his  patient  .  .  .  although  this  last 
objection  does  not  appear  to  have  been  made  at  the 
trial.  The  information  communicated  by  Dr.  Kimball 
to  the  superintendent  of  the  hospital  was  acquired 
by  the  former  while  attending  the  patient,  and  was 

1  Kelly  v.  Levy,  29  St.  Rep.,  659;  8  Supp.,  849. 

2  Smart  ».  Kansas  City  (Mo.),  105  S.  W.(  709. 


PRIVILEGED  COMMUNICATIONS  297 

necessary  to  enable  him  to  prescribe  or  act  for  him. 
Dr.  Kimball  would  not  have  been  allowed  to  make 
such  disclosure,  and  the  statutory  restriction  upon 
him  could  not  be  evaded  by  introducing  in  evidence 
testimony  of  a  third  party  as  to  what  the  doctor  said 
about  the  case."1 

A  case  involving  a  very  similar  question,  where  a 
certificate  signed  by  a  physician,  setting  forth,  among 
other  things,  the  cause  of  death,  required  by  an 
ordinance  as  a  condition  of  a  permit  for  the  removal 
of  a  body,  was  held  privileged  in  an  action  against  an 
insurance  company  notwithstanding  that  the  ordi- 
nance permitted  the  certificate  to  be  made  by  a  relative, 
the  court  saying:  "If  signed  by  a  physician,  it  con- 
tains matter  relating  to  his  patient  which  the  physician 
is  not  allowed  to  disclose  as  a  witness  upon  the  trial, 
against  the  objection  of  his  patient  or  one  representing 
him.  That  a  record  of  this  character  reciting  privileged 
communications  may  be  used  in  evidence  against  a 
party,  where  the  testimony  of  the  physician  making 
it  cannot  be  received,  is  a  proposition  so  inconsistent 
with  reason  and  natural  rules  of  justice  that  we  can- 
not give  our  consent  thereto."2 

(6)  Records  of  Health  Board. — Records  of  a  board 
of  health  are  incompetent  to  prove  the  cause  of  a 
person's  death  by  the  physician's  certificate.3 

(7)  Autopsy. — A    physician    is   not   debarred    from 
testifying  as  to  an  autopsy  of  the  body  of  one  who 
had  not  been  a  patient  in  his  lifetime,  attended  by 
him  after  death.4 

(8)  Communications  Made  for    Unlawful  Purpose.— 
The  privilege  has  no  application  to  communications 

1  Price  P.  Life  Ins.  Co.,  90  Minn.,  264;  95  N.  W.,  1118. 

1  Sovereign  Camp  W.  W.  v.  Grandon,  64  Nebr.,  39;  89  N.  W.,  448. 

*  Davis  P.  Supreme  Lodge,  165  N.  Y.,  159;  58  N.  E.,  891. 

4  Harrison  v.  Sutler  St.  Ry.  Co.,  116  Cal.,  156. 


298    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

made  for  an  unlawful  purpose,  having  for  their  object 
the  commission  of  crime.1  Thus  communications 
from  one  physician  to  another,  made  to  secure  the  aid 
of  the  latter,  in  the  commission  of  an  abortion,  are 
not  privileged.2  In  the  absence  of  any  showing  to 
the  contrary  the  presumption  must  be  indulged  that 
the  communication  was  for  a  lawful  purpose.3 

(d)  Who  May  Claim  Privilege. — The  privilege  may 
be  invoked  by  the  patient  or  the  personal  representa- 
tives of  the  deceased  patient,4  or  by  the  assignee  of  a 
beneficiary  in  a  life  insurance  policy.5 

(e)  Waiver. — (i)  In  General. — The  rule  prohibiting 
physicians    from    disclosing    information    obtained    in 
attending  patients  is   for  the  benefit  of  the   patient 
and  not  the  physician,  and  continues  in  force  indefi- 
nitely and  can  only  be  waived  by  the  patient,6  and 
neither. the  death  of  the  patient  nor  that  of  the  physi- 
cian terminate  it.     The  waiver  of  the  seal  of  secrecy 
from  professional  information  is  not  contrary  to  public 
policy,7  and  is  not  dependent  upon  any  statute  expressly 
allowing  it.8 

(2)   Who  May  Waive  Privilege. — The  privilege  may 
be  waived  by  the  patient,9  by  his  attorney,10  personal 

1  State  v.  Kidd,  89  Iowa,  56. 

2  State  v.  Smith,  99  Iowa,  26. 

3  Guptill  v.  Verback,  58  Iowa,  98. 

4  Heuston  v.  Simpson,  115  Ind.,  62. 

5  Briesenmeister  v.  Supreme  Lodge,  81  Mich.,  525. 

6  Storrs  v.  Scougale,  48  Mich.,  387. 

7  Dougherty  v.  Metropolitan  Life  Ins.  Co.,  87  Hun.,  15. 

8  Kenyon  v.  Mondovi,  98  Wis.,  50. 

9  California — Lissak  v.  Crocker  Co.,   119  Cal.,  442.     Indiana — Morris  v. 
Morris,  119  Ind.,  341;  Penn.  Mut.  Ins.  Co.  v.  Wiler,  100  Ind.,  92.     Iowa — 
Shuman   v.    Supreme   Lodge,    no    la.,   480.      Michigan — Briesenmeister   v. 
Supreme  Lodge,  81  Mich.,  525.     Missouri — Cramer  v.  Hurt,  154  Mo.,  112; 
Davenport  v.   Hannibal,    108   Mo.,   471.     Montana — Territory  v.   Corbett, 
3  Mont.,  50.    New  York— Morris  v.  N.  Y.,  etc.,  R.  Co.,  148  N.  Y.,  88.     Wis- 
consin— In  re  Bruendl,  102  Wis.,  45. 

10  Alberti  v.  New  York,  etc.,  Ry.  Co.,  118  N.  Y.,  77. 


PRIVILEGED  COMMUNICATIONS  L".»'.I 

representative,1  by  the  beneficiary  in  policy  of  life 
insurance,2  or  by  his  natural  guardian.3 

(3)  How  Waiver  Effected. — The  privilege  may  be 
waived  by  the  patient  testifying  to  the  privileged 
matter  himself,4  or  by  calling  the  physician  as  a 
witness.5 

Testimony  on  behalf  of  the  patient,  in  an  action 
brought  by  himself  against  his  physician,  operates 
as  a  waiver  of  his  privilege,  both  as  to  the  physician 
himself  and  others  called  in  consultation  with  him; 
but  not  as  to  physicians  independently  employed, 
unless,  it  may  be,  the  patient  testifies  as  to  his  com- 
munications to  the  latter.  But  the  bringing  of  a 
suit  by  a  husband  for  malpractice  upon  his  wife,  or 
the  giving  of  testimony  by  the  wife  in  such  suit,  will 
not  of  itself  so  operate.  However,  the  physician 
may  be  permitted  to  testify  in  such  an  action  if  the 
necessities  of  justice  require. 

Thus  it  has  been  held  in  an  action  brought  by  a 
husband  for  alleged  malpractice  upon  his  wife,  in 
which  the  plaintiff,  his  wife,  and  his  wife's  mother 
testified  as  to  all  that  was  done  by  the  defendant  at 
the  time  the  surgical  operation  was  performed.  A 
physician  who  was  in  attendance  as  a  consulting 
surgeon  might  testify  as  to  what  occurred,  the  court 
saying:  'The  testimony  given  by  the  witness  of  the 
(patient)  broke  the  seal  of  privacy,  and  gave  publicity 
to  the  whole  matter.  The  patient  waived  the  statu- 
tory rule.  The  course  pursued  laid  the  occurrence 
open  to  investigation.  Nothing  was  privileged,  since 

1  Morris  P.  Morris,  119  Ind.,  341;  Eraser  p.  Jennison,  42  Mich.,  206;  Hoi- 
comb  v.  Harris,  166  N.  Y.,  257. 
1  Penn.  Mut.  Life  Ins.  Co.  P.  Wiler,  100  Ind.,  92. 

1  State  v.  Depoister,  21  Nev.,  107;  Corey  v.  Bolton,  31  Misc.  (N.  Y.),  138 
*  Marx  P.  Manhattan  R.  Co.,  56  Hun.,  575. 
1  Lissak  p.  Crocker  Co.,  119  Cal.,  442;  Holcorab  P.  Harris,  166  N.  Y.,  257. 


300    PHYSICIANS  AND  SURGEONS  AS  WITNESSES 

all  was  published.  The  statute  was  not  meant  to 
apply  to  such  a  case  as  this  nor  is  it  within  the  letter 
or  the  spirit  of  the  law.  If  a  patient  makes  public 
in  a  court  of  justice  the  occurrence  of  the  sick  room 
for  the  purpose  of  obtaining  judgment  for  damages 
against  his  physician,  he  cannot  shut  out  the  physi- 
cian himself,  nor  any  other  who  was  present  at  the 
time  covered  by  the  testimony.  When  the  patient 
voluntarily  publishes  the  occurrence,  he  cannot  be 
heard  to  assert  that  the  confidence  which  the  statute 
intended  to  maintain  inviolate  continues  to  exist. 
By  his  voluntary  act  he  breaks  down  the  barriers, 
and  the  professional  duty  of  secrecy  ceases.  It  would 
be  monstrous  if  the  patient  himself  might  detail  all 
that  occurred,  and  yet  compel  the  physician  to  remain 
silent.  The  principle  is  the  same  whether  the  physi- 
cian called  is  a  consulting  physician,  or  is  the  defendant. 
The  opening  of  the  matter  to  investigation  removed 
the  obligation  of  secrecy  as  to  all,  not  merely  as  to  one. 
When  the  obligation  to  silence  is  broken,  it  is  broken 
for  the  defendant  as  well  as  for  the  plaintiff.  As  to 
all  witnesses  of  the  transaction  it  is  fully  opened  to 
investigation,  if  opened  at  all,  by  the  party  having 
a  right  to  keep  it  closed.  A  patient  cannot  elect  what 
witnesses  shall  be  heard  and  what  shall  not,  for  if 
once  investigation  legitimately  begins  it  continues  to 
the  end.  A  patient  may  enforce  secrecy  if  he  chooses, 
but  where  he  himself  removes  the  obligation  he  can- 
not avail  himself  of  the  statute  to  exclude  witnesses 
to  the  occurrence."1 

1  Lane  v.  Boicourt,  128  Ind.,  420;  27  N.  E.,  mi. 


CHAPTER  X 

RIGHT  TO  PROTECT  PROFESSIONAL 
REPUTATION 

i.  IN   GENERAL 

IT  is  libelous  to  impute  to  a  member  of  the  medical 
profession  that  he  does  not  possess  the  technical 
knowledge  necessary  for  the  proper  practice  of  such 
profession,  or  that  he  has  been  guilty  of  professional 
misconduct.  If  the  words  do  not  touch  the  personal 
character  or  professional  conduct  of  the  individual, 
they  are  not  defamatory  of  him,  and  no  action  lies. 
Any  words  imputing  to  any  person  engaged  in  the 
medical  profession,  misconduct  or  incapacity  in  the 
discharge  of  his  professional  duties,  are  actionable 
without  proof  of  special  damages.1 

2.  AGAINST  IMPUTATION  OF  GENERAL  INCOMPETENCY 

(a)  In  General. — It  is  generally  held  actionable  to  im- 
pute general  incompetency  to  a  physician.2  Thus  it 
is  actionable  to  say:  "Many  have  perished  from  her 
want  of  skill,"3  and,  "It  is  a  world  of  blood  he  has  to 
answer  for  in  this  town;  through  his  ignorance  he  did 
kill  a  woman  and  two  children  at  Southampton;  he 
did  kill  John  Prior  at  Petersfield."4  So,  too,  a  state- 

1  Camp  v.  Martin,  23  Conn.,  86;  Jones  r.  Driver,  22  Ind.,  184;  Craig  ». 
Brown,  5  Black,  44;  Can  r.  Selden.  6  Barb.  (N.  Y.),  416. 
*  Swift  v.  Dickerman,  31  Conn.,  285. 

1  Cruikshank  v.  Gordon,  48  Hun.,  308;  affirmed,  118  N.  Y.,  178. 
4  Tutty  v.  Alewin,  1 1  Mod.  Rep.,  283. 


302     RIGHT   TO  PROTECT  PROFESSIONAL  REPUTATION 

ment:  "Look  at  those  you  profess  to  cure,  you  killed; 
they  are  in  their  graves,"  is  actionable.1  Likewise, 
it  is  actionable  to  charge  a  physician  with  having 
killed  "six  children  in  one  year."2  It  has  been  held 
that  an  article  in  a  Polish  newspaper  concerning  a 
physician  largely  patronized  by  Poles  among  whom 
the  paper  circulates,  is  libelous  upon  its  face  where 
it  refers  to  his  profession  and  business,  calls  him  a 
blockhead  or  fool,  and  appeals  to  the  Poles  not  to 
trust  themselves  or  their  families  to  his  professional 
care  when  he  so  hated  them  that  he  would  not  help 
them  if  he  could.3  But  it  is  not  actionable  to  state 
of  a  physician  that  "he  is  a  two-penny  bleeder;"4 
neither  is  it  actionable  to  state  of  an  old  school  physi- 
cian that  he  has  met  homeopathists  in  consultation.5 
It  is  not  actionable  for  an  apothecary  merely  to  decline, 
on  one  or  two  occasions,  to  fill  his  prescriptions  for 
reasons  not  at  all  impugning  the  physician's  capacity;6 
but  an  apothecary  is  liable  in  damages  to  a  physician 
where,  without  the  slightest  cause,  he  indulges  in 
public  expressions  tending  to  create  the  impression 
of  the  physician's  incompetency,  as  for  instance  that 
his  diploma  is  not  worth  a  straw.7 

A  preamble  to  an  order  of  a  village  board  of  health 
in  regard  to  the  treatment  of  obstetrical  cases,  which 
states  that  the  reason  for  making  the  order  is  that 
the  board  has  become  satisfied  that  a  number  of 
recent  deaths  in  the  village  have  resulted  from  the 
carelessness  and  negligence  of  the  physician  attending 
the  patients  in  childbirth  soon  after  attending  and 

1  De  Pew  v.  Robinson,  95  Ind.,  109. 

2  Carroll  ».  White,  33  Barb.,  615. 

3  King  v.  Pitass,  162  N.  Y.,  154. 

4  Foster  v.  Small,  3  Whart.,  138. 

3  Clay  v.  Roberts,  9  Jur.,  N.  S.,  580. 

6  Tarleton  v.  Lagarde,  46  La.  Ann.,  1368;  16  So.,  180. 

7  Ibid. 


IMPUTATION  OF  GENERAL  INCOMPETENCY      303 

handling  other  patients  affected  by  blood  poison  and 
other  infectious  diseases,  and  that  from  the  same 
cause  others  in  the  village  have  barely  escaped  death, 
is  libelous  per  se.1 

It  has  been  held  that  a  petition  circulated  by  persons 
who  describe  themselves  as  reputable  physicians  and 
dentists  occupying  offices  in  a  building  and  reciting 
that,  endeavoring  to  uphold  the  honor  and  dignity 
of  their  profession  and  desiring  to  encourage  only  the 
best  and  most  desirable  tenants  for  the  building,  they 
are  emphatically  opposed  to  the  rental  of  offices  to 
osteopaths,  criminal  practitioners,  advertising  special- 
ists, patent  medicine  fakers,  quacks,  charlatans,  and 
other  fraudulent  concerns,  is  a  libel  upon  an  osteopath 
having  an  office  in  the  building.2 

A  medical  society  which  acts  without  jurisdiction 
is  liable  for  a  libel  if  it  spreads  upon  its  minutes  a 
report  expelling  a  member  for  alleged  incompetency 
in  his  profession.3  It  is  not  libelous  for  a  newspaper 
to  publish  an  article  which  states  in  substance  that 
the  body  of  a  farmer  wrho  apparently  had  been  frozen 
to  death  had  been  found  in  the  highway;  that  it  had 
been  taken  charge  of  by  plaintiff,  as  coroner,  who 
empaneled  a  jury  and  was  proceeding  with  an  inquest 
when  a  physician,  on  making  a  careful  examination, 
pronounced  the  man  alive,  and  after  about  twenty- 
four  hours'  labor,  restored  him  to  consciousness,  no 
mention  being  made  in  the  article  that  the  coroner 
was  a  physician.4 

It  is  competent  for  a  jury  to  find  that  words  spoken 
by  a  clergyman  to  his  congregation,  to  the  effect 
that  a  certain  physician  had  been  excommunicated 

1  Maukr.  Brundage,  68  Ohio  St.,  89,  67  N.  E.,  152. 

*  Lathrop  v.  Sunberg,  55  Wash.,  144,  104  Pac.,  176. 

*  Fawcett  p.  Charles,  13  Wend.,  473. 

4  Purdy  v.  The  Rochester  Printing  Co.,  96  N.  Y.,  37. 


304    RIGHT   TO  PROTECT  PROFESSIONAL   REPUTATION 

and  should  be  no  longer  employed  by  them,  were 
spoken  maliciously  and  for  the  purpose  of  injuring 
the  physician  in  his  business.1 

(b)  Charging  a  Physician  with  being  no  Scholar.— 
The  old  rule  that  it  is  libelous  to  charge  a  physician 
with  being  no  scholar  is  now  disapproved.2 

(c)  Ostentatious      Puffing. — Ostentatious      puffing 
likely    to   subject   a    physician    to    ridicule    has    been 
assumed  to  be  actionable.3 

(d)  Calling  a  Physician  a  Quack. — It  is  actionable 
to  call  a  physician  a  quack;4  or  to  say,  "Thou  art  a 
quack   salver;"5  also    to   say  he    is    an   empiric    and 
mountebank  and  a  base  fellow.6     It  cannot  be  slander 
to  say  that  a  person  professing  to  be  a  physician  is  a 
quack  if  he  has  no  diploma  to  entitle  him  to  his  degree.7 
When  the  physician  is  not  entitled  to  practise  medicine, 
he  cannot  recover  damages  for  the  utterance  concern- 
ing him,   "he  is  no  doctor,   nothing  but  a  traveling 
quack,  knows  nothing  about  medicine,  and  but  little 
about  anything  else.8     Likewise,  one  having  no  right 
to  practise  medicine  cannot  recover  damages  from  one 
who  states  that  he  is  a  quack  and  impostor  and  has 
not  the  slightest  title  to  such  honor  as  to  be  called  a 
doctor.9 

(e)  Charging   a   Physician   with   Drunkenness. — To 
state  that  a  physician   "is  so  steady  drunk  that  he 
cannot   get    business   any   more"  is  not   actionable.10 

1  Morasse  v.  Brochu,  151  Mass.,  567;  25  N.  E.,  74. 

2  Foster  v.  Small,  3  Whart.,  138. 

3  Sullings  ».  Shakespeare,  46  Mich.,  408. 
<  White  v.  Carroll,  42  N.  Y.,  161. 

6  Rolle,  Abr.,  54. 

6  Goddart  v.  Haselfoot,  I  Rolle.  Abr.,  54. 

7  Moises  v.  Thornton,  8  T.  R.,  303. 

8  Hargan  v.  Purdy,  14  Ky.  L.  Rep.,  383. 

9  Collins  v.  Carnegie,  I  Ad.  &  El.,  695. 

10  Anonymous,  I  Ohio,  83. 


AGAINST  IMPUTATION  OF  INCOMPETENCY      305 

To  say:      'Thou  art  a  drunken  fool  and  an  ass,"  has 
been  held  actionable.1 

(/)  Charging  a  Physician  with  Adultery. — This  does 
not  affect  him  in  his  profession  so  as  to  be  actionable 
in  itself.2  But  a  charge  of  incontinence  in  his  pro- 
fessional relations  may  be  actionable.3  So  to  charge 
a  physician  with  incontinence,  by  which  he  looses  his 
business,  is  actionable.4  In  Rhode  Island  the  supreme 
court  seems  to  have  assumed  that  it  was  actionable  to 
state  that  the  physician  had  been  caught  in  the  act  of 
adultery  with  one  of  his  patients,  by  reason  of  which 
his  practice  fell  off.5 

(g)  Imputing  General  Incompetency  to  Midwife.— 
To  say  of  a  midwife  that  she  is  an  ignorant  woman  and 
hath  small  practice,  and  is  very  unfortunate  in  her 
way,  there  are  few  but  are  sick  or  die  under  her  care, 
is  actionable.6  So  to  state  that  a  midwife  cannot  do 
her  work  without  the  help  of  others  is  actionable.7 
To  state:  'Thou  art  no  midwife  but  a  nurse,  and 
if  I  had  not  pulled  thee  from  Mrs.  J.  S.,  thou  hadst 
killed  her  and  her  child,"  is  actionable.8  To  say: 
"Many  have  perished  for  her  want  of  skill"  is  action- 
able.9 

3.  AGAINST  IMPUTATION  OF  INCOMPETENCY  IN 
PARTICULAR  CASE 

(a)  In  General. — A  physician  is  only  required  to 
possess  the  ordinary  knowledge  and  skill  of  his  pro- 
fession. He  may  possess  them  and  much  more,  and 

1  Cawdry  v.  Highley,  Cro.  Car.,  270. 

*  Ayre  r.  Graver,  2  Ad.  &  El.,  2. 

1  MacLean  v.  Scripps,  52  Mich.,  214. 

*  Dixon  r.  Smith,  5  Hurlet  &  N.,  450. 

•  Rice  v.  Cottrel,  5  R.  I.,  340.  •  Wharton  r.  Brook,  I  Vent.,  21. 

7  Gyles  v.  Bishop,  Freem.,  278.  •  Whitehead  v.  Founer,  Freem.,  277. 

•  Flower's  Case,  Cro.  Car.,  211. 

20 


306     RIGHT  TO  PROTECT  PROFESSIONAL  REPUTATION 

yet  be  unable  to  accurately  diagnosticate  every 
disease  presented,  or  always  foretell  the  exact  power 
and  effect  of  medicine  or  treatment  prescribed;  but 
such  deficiencies  are  incidents  to  human  imperfections. 
So  long,  therefore,  as  the  words  employed  in  stating 
the  conduct  of  a  physician  in  a  particular  case  only 
impute  to  him  such  ignorance  or  want  of  skill  as  is 
compatible  with  the  ordinary  or  general  knowledge 
and  skill  in  the  same  profession,  they  are  not  action- 
able in  themselves.  But  where  the  words  so  employed 
taken  together  are  such  as  fairly  impute  to  him  gross 
ignorance  and  unskilfulness  in  such  matters  as  men 
of  ordinary  knowledge  and  skill  in  the  profession  should 
know  and  do,  then  they  necessarily  tend  to  bring  such 
physicians  into  public  hatred,  ridicule,  or  professional 
disrepute,  and  hence  are  actionable.1 

A  false  report  concerning  a  physician,  although  con- 
fined to  his  conduct  in  a  particular  case,  and  although 
it  imputed  to  him  no  general  professional  incompe- 
tence, might  nevertheless  imply  such  gross  ignorance 
or  such  gross  and  reckless  or  inhuman  disregard  for 
the  health  or  life  of  his  patient  in  that  particular 
instance  as  necessarily  to  injure  his  professional  reputa- 
tion and  cause  him  pecuniary  injury.  Thus  a  charge 
of  allowing  the  decomposing  body  of  a  dead  infant 
to  remain  for  several  days  in  the  room  with  its  sick 
mother  is  actionable.2 

However,  words  spoken  of  a  physician  in  reference 
to  a  particular  case  only  may  be  so  qualified  by  the 
fact  that  the  most  eminent  physicians  are  liable  to 
make  mistakes,  that  unless  they  have  an  import  and 
meaning,  which  in  effect  reaches  beyond  the  particular 

1  Ganvrean  v.  Superior  Publishing  Co.,  62  Wis.,  403;  22  N.  W.  Rep.,  726; 
Bradley  v.  Cramer,  59  Wis.,  3i2,3i3;i8N.  W.  Rep.,  268. 

2  Pratt  v.  Pioneer  Press  Co.,  35  Minn.,  251. 


AGAINST  IMPUTATION  OF  INCOMPETENCY      307 

case  and  its  treatment  and  goes  to  affect  the  doctor's 
professional  character,  learning,  or  skill,  the  law 
implies  no  damages  as  the  consequence,  and  special 
damages  are  necessary  to  support  the  action.1 

As  was  said  by  the  court  in  a  Mississippi  case:  'To 
charge  a  professional  man  with  negligence  or  unskil- 
fulness  in  the  management  or  treatment  of  a  particular 
case  is  no  more  than  to  impute  to  him  the  mistakes 
and  errors  incident  to  fallible  human  nature,  and  as  no 
man  can  rightfully  claim  infallibility,  the  imputation 
of  the  contrary  can  work  no  legal  damage  or  injury 
to  him  however  much  it  may  wound  his  vanity  or 
offend  his  sensibility."2  Thus  it  is  not  actionable 
per  se  to  say  that  a  doctor  amputated  an  arm  "to 
get  his  name  up,"  or  "to  get  the  fee,"  or  "that  he 
acted  on  the  advice  of  another  doctor,"  or  "that 
he  might  better  have  taken  off  the  other  arm."3 

(&)  Charging  a  Physician  with  Killing  Patient. — It  is 
actionable  to  say  that  a  physician  killed  a  patient 
for  lack  of  skill;4  and  that  "he  has  killed  the  child  by 
giving  it  too  much  calomel."5  Likewise  it  is  action- 
able to  say  of  a  surgeon:  "He  killed  J.  S. ;"6  and  it 
has  been  held  actionable  to  say  of  a  physician:  "He 
killed  my  child;  it  was  the  saline  injection  that  did 
it."7  It  is  actionable  to  say  of  a  physician:  "Doctor 
Secor  killed  my  children.  He  gave  them  teaspoonful 
doses  of  calomel,  and  they  died;  they  died  right  off, 
the  same  day."8  To  say  of  a  physician  that  the 
bitters  he  gave  a  patient  were  the  cause  of  his  death, 

1  Lynde  v.  Johnson,  39  Hun.,  12. 
1  Rodgers  v.  Kline,  56  Miss.,  808. 
1  Lynde  v.  Johnson,  39  Hun.,  12. 
4  Watson  P.  Vanderlash,  Het.,  71. 

•  Johnson  v.  Robertson,  8  Port.  (Ala.),  486. 

•  Watson  P.  Vanderlash,  Hetley's  Rep.,  69. 

1  Edsall  v.  Russell,  43  Eng.  Com.  Law,  560. 

•  Secor  P.  Harris,  18  Barb.,  425. 


308     RIGHT   TO  PROTECT  PROFESSIONAL  REPUTATION 

that  there  was  poison  enough  in  them  to  have  killed 
ten  men,  is  actionable.1  To  charge  a  physician  with 
causing  the  death  of  a  person,  by  administering  poison 
in  medicine,  is  slanderous.2 

(c)  Charging  a  Physician   with   Lack    of    Skill. — A 
charge  of  inability  to  recognize  diphtheria  as  other 
physicians  would  is  actionable.3 

(d)  Charging  a  Physician  with  Unprofessional  Con- 
duct.— To  say  that  a  physician's  treatment  of  a  par- 
ticular case    was   rascally  is   not   actionable   per  se.4 
But  it  is  actionable  to  say:  "He  poisoned  the  wound 
of  his  patient  for  gain  or  money."5 


4.  NECESSITY  OF  COMPLAINING  PHYSICIAN  BEING 
LICENSED 

A  person  must  be  lawfully  authorized  to  practice 
the  profession  of  medicine  in  order  to  maintain  an 
action  for  libel  or  slander  against  one  who  charges 
him  with  misconduct  or  incapacity  in  the  discharge 
of  his  professional  duties.6  It  is  not  slanderous  to 
say  of  a  person  professing  to  be  a  physician,  that  he 
is  a  quack,  when  he  has  no  diploma.7  If  a  physician 
brings  an  action  for  the  speaking  of  words  which  are 
disgraceful  to  him  in  his  profession,  he  must  aver, 
in  his  complaint,  that  he  was  a  practising  physician 
at  the  time,  when,  etc.,  and  that  the  words  were 
spoken  of  and  concerning  him  in  his  profession.8 

1  Jones  v.  Diver,  22  Ind.,  184. 

2  Ibid. 

3  Ganvrean  v.  Superior  Pub.  Co.,  62  Wis.,  403. 

4  Camp  v.  Martin,  23  Conn.,  86. 
6  i  And.  R.,  268. 

6  Hargan  v.  Purdy,  14  Ky.  Law  Rep.,  384;  March  v.  Davidson,  9  Paige 
(N.  Y.),  580. 

7  Moises  v.  Thornton,  8  F.  R.,  303. 

8  Carroll  v.  White,  33  Barb.  (N.  Y.),  615. 


CHAPTER  XI 

VALIDITY  OF  CONTRACT   RESTRICTING 
EXERCISE  OF   PROFESSION 

COVENANTS  in  general  restraint  of  trade,  ancillary 
to  the  sale  of  a  medical  profession  and  the  good-will 
thereof,  are  generally  held  violative  of  public  policy, 
either  because,  upon  the  facts,  a  general  restriction  is 
more  extensive  than  the  protection  of  the  covenantee 
requires,  or  because  the  interests  of  the  State  will 
not  permit  of  a  general  restriction.1  However,  such 
covenants  by  physicians  are  generally  sustained  where 
the  restraint  is  partial  and  reasonable  in  its  extent 
as  where  the  agreement  is  not  to  practise  their  profes- 
sion in  a  certain  city,  town,  or  village. 

In  many  cases,  agreements  by  physicians,  ancillary 
to  the  sale  of  their  practice  and  good-will,  not  to 
practise  their  profession  in  a  certain  city,  town,  or 
village,  have  been  sustained,2  or  where  it  covers  a 
county.3 

Agreements  by  physicians  have  also  been  sustained 
where  the  agreement  was  not  to  practise  at  a  certain 

1  Rakestraw  r.  Lamer,  104  Ga.,  188;  Mandeville  v.  Harman,  42  N.  J.  Eg., 
185. 

*  McCarry  v.  Gibson,  108  Ala.,  451;  Webster  v.  Williams,  62  Ark.,  101 
(city  and  vicinity);  Martin  ».  Murphy,  129  Ind.,  464;  Beatty  p.  Coble,  142 
Ind.,  329;  Cole  v.  Edwards,  93  Iowa,  477;  Hill  v.  Cudgell,  9  Ky.  L.  Rep., 
436;  Oilman  v.  Dwight,  13  Gray,  356;  Mott  v.  Mott,  II  Barb.,  127;  Mauser 
v.  Harding,  126  N.  C.,  295  (town  and  surrounding  territory);  French  P.  Parker, 
16  R.  L,  219. 

*  Holbrook  v.  Waters,  9  How.  Pr.f  335;  Gordon  r.  Mansfield,  84  Mo.  App., 
367. 


310  VALIDITY  OF  CONTRACT 

place  or  a  certain  distance  therefrom.1  An  agreement 
by  a  physician  not  to  resettle  at  a  certain  place  will 
prevent  him  again  residing  there  to  practise  his  pro- 
fession, but  it  will  not  prevent  him  from  residing  in 
that  locality  and  practising  .at  such  place.2 

Specific  Enforcement  of  Covenants  not  to  Practise. 
— On  the  sale  of  his  practice  by  a  physician,  a  cove- 
nant or  agreement  on  his  part  not  to  carry  on  or 
practise  his  profession  within  a  reasonable  distance 
of  a  particular  place  is  valid,  and  will  be  enforced  by 
injunction  in  favor  of  the  purchaser  of  the  practice.3 
Before  a  covenant  not  to  practise  "in  the  neighbor- 
hood" can  be  enforced,  evidence  must  be  given  to 
show  the  extent  of  the  practice  sold  to  the  complaining 
physician;  and  an  injunction  will  not  be  granted  to 
restrain  an  alleged  breach  of  contract  not  to  practise 
medicine  where  there  is  not  sufficient  evidence  of  such 
an  agreement. 

Where  a  physician  has  covenanted  not  to  practise 
in  a  certain  locality  for  a  given  period,  and  has  bound 
himself  thereto  in  a  penal  sum,  and  there  is  a  viola- 
tion of  his  agreement,  there  being  an  entire  uncer- 
tainty in  any  calculation  of  damages  from  the  breach 
of  the  contract,  and  the  measure  of  damages  being 
largely  conjectural,  equity  will  by  injunction  compel 
the  specific  performance  of  the  contract.4 

Where  a  physician  has  agreed  not  to  "locate" 
within  a  given  distance  of  a  village,  it  is  a  violation 

1  Betts'  Appeal,  10  W.  N.  C.,  431  (five  miles);  Doty  v.  Martin,  32  Mich., 
462;  Smith  v.  Smith,  41  Wend.,  468;  Linn  v.  Sigsbee,  67  111.,  75  (six  miles); 
Ryan  v.  Hamilton,  205  111.,  191  (eight  miles);  Pickett  v.  Green,  120  Ind.,  584; 
Wolff  v.  Hirschfeld,  23  Tex.  Civ.  App.,  670  (ten  miles);  Thompson  v.  Means, 
II  Smedes  &  M.,  604  (eleven  miles);  McClurg's  Appeal,  58  Pa.,  51  (twelve 
miles);  Miller  v.  Elliott,  I  Ind.,  484  (fifteen  miles);  Butler  v.  Burleson,  16 
Vt.,  176  (twenty  miles). 

2'Haldeman  v.  Simonton,  55  Iowa,  144;  7  N.  W.,  493. 

3  McClurg's  Appeal,  58  Pa.,  51. 

4  Witkinson  v.  Colly,  164  Pa.,  35. 


ENFORCEMENT  OF  COVENANTS  311 

of  his  covenant,  which  will  be  restrained  by  injunc- 
tion, for  him  to  open  an  office  within  said  distance 
of  the  village,  although  the  distance  between  his 
office  and  the  purchaser  is  greater  than  that  prescribed 
in  the  contract.1  In  such  case,  while  prohibited  from 
locating  within  the  prescribed  radius,  the  covenantor 
will  not  be  prohibited  from  practising  within  such 
territory  provided  he  does  not  locate  therein. 

A  physician  who  has  agreed  not  to  practise  within 
a  given  radius  will  be  restrained  by  injunction  from 
answering  "special  calls"  made  for  his  services  by 
persons  within  said  district.  An  injunction  granted 
to  restrain  a  physician  from  practising  within  pre- 
scribed limits  in  violation  of  his  contract,  has  been 
afterward  continued  though  the  purchaser's  note,  given 
for  the  purchase  money,  had  become  due  and  unpaid.2 

1  Miller  v.  Keeler,  9  Pa.  Co.  Ct.,  274. 
*  Gaul  v.  Hoffman,  5  Pa.  Co.  Ct.,  355. 


CHAPTER  XII 

WILLS 

1.  In    General. — In    considering    the    use    of    legal 
knowledge    as    applicable    to    medical    practice,    Sir 
William    Blackstone    has    mentioned    one    of    many 
instances:     "It  would  be  useful  if  the  medical  attend- 
ant were   acquainted   with   at   least   the   formal   part 
of   executing    wills;    in    the    moment    of   danger    and 
distress,  when  all  around  the  bed  of  death  are  con- 
fused   with    fear,    or   overwhelmed    in    affliction,    the 
physician,  probably  a  confidential  friend,  whose  duty 
and   habit   ensures   self-possession,   may   be  the  only 
person  competent  to  advise.     How  many  estates  have 
been  lost  to  an  intended  heir  by  an  attestation  infor- 
mally signed  because  the  witnesses  were  not  in  the 
presence  of  the  testator?" 

2.  "Will"  Denned. — The  word  "will,"  in  the  popular 
meaning   of   the   term,    is   a   disposition,    made   by   a 
competent   testator  in   the   form   prescribed   by   law, 
of  property,  over  which  he  has  legal  power  of  disposi- 
tion, which  disposition  is  of  such  nature  as  to  take 
effect  at  the  death  of  the  testator. 

3.  Who    May    Make    a   Will. — Generally   speaking, 
the  maker  of  a  will  must  be  of  full  age,  of  sound  mind 
and  memory,  and  not  under  any  restraint.     In  some 
States  full  age  is  twenty-one  years  for  both  males  and 
females;  in  other  States  it  is  eighteen  years  for  females 
and  twenty-one  years  for  males.     This  as  a  general 
proposition    excludes    infants,    insane    persons,    those 
suffering   from   delirium   tremens   or   drunkenness   at 


\\'/T. \ESSES  IN  PRESKXCK  OF  EACH  OTHER     313 

the  time  of  making  the  will,  idiots,  imbeciles,  and 
monomaniacs,  when  the  will  is  the  offspring  of  such 
defects.  In  the  States  where  modern  statutes  have 
given  a  married  woman  the  same  power  to  act  as  if 
she  were  unmarried,  she  has  the  same  power  to  make 
a  will  that  a  man  has. 

4.  Publication. — Publication  is  the  act  of  making 
known  in  the  presence  of  witnesses  that  the  instru- 
ment to  be  executed  is  the  last  will  and  testament  of 
the  testator.1    It  is  not  necessary  to  constitute  publica- 
tion that  the  contents  of  the  will  be  made  known  to 
the  witnesses,  nor  is  it  material  whether  publication 
precedes  or  follows  the  signing  of  the  will.2 

5.  Necessity   of   Signing  in   Testator's   Presence.— 
The  will  must  be  attested  and  subscribed  in  the  pres- 
ence of  the  testator.     The  word  "presence"  implies 
that  what  is  to  be  done  in  a  person's  presence  must 
take  place    in    physical    proximity  to    such    person. 
If  the  act  is  done  in  the  same  room   with  a  person 
it  is  done  in  his  presence  prima  facie.    The  person  in 
whose  presence  the  act  is  done  must  be  able  mentally 
to  know  what  is  being  done.3    Thus  if  he  be  faint  and 
unable  to  know  what  is  being  done,  or  if  he  be  asleep, 
in  a  stupor  or  dying,  it  is  impossible  for  the  act  to  be 
done  in  his  presence.4 

6.  Necessity  of  Subscription  of  Witnesses  in  Pres- 
ence of  Each   Other. — It  is  not  necessary  that  sub- 
scription of  the  witnesses  be  made  by  them  in  the 
presence  of  each  other,  and  at  the  same  time  if  each 
sign  in  the  presence  of  the  testator. 

1  Hildreth  v.  Marshall,  51  N.  J.  Eg.,  241;  Gilbert  r.  Knox,  52  N.  Y.,  125. 

*  Ayres  v.  Ayres,  43  N.  J.  Eg.,  565;  Jackson  r.  Jackson,  39  N.  Y.,  153; 
Errickson  v.  Fields,  30  N.  J.  Eg.,  634. 

1  Hill  r.  Barge,  12  Ala.,  687:  Hall  p.  Hall,  18  Ga.,  40;  Baldwin  r.  Baldwin, 
8 1  Va.,-405. 

4  Walters  v.  Walters,  89  Va.,  849. 


314  WILLS 

7.  Sufficiency  of  Subscription. — The  witness  is  re- 
quired   by    statute    to    "subscribe"    the    will.      This 
subscription  should  be  his  full  name,  but  such  formality 
is  not  indispensable.    The  witness  may  sign  his  initials, 
or  an  assumed  name,  when  done  in  good  faith,  or  he 
may  sign   by   his   mark.     A  physician  or  any  other 
person  is  not  justified   in   putting  his  name  as  sub- 
scribing witness  to  a  will  unless  he  knowrs  from  the 
testator  himself  that  he  understands  what  he  is  doing. 
The   witness   should   also   be   satisfied   from   his   own 
knowledge  of  the  state  of  testator's  mental  capacity 
that  he  is  of  sound  and  disposing  mind  and  memory. 
By  placing  his  name  to  the  instrument  the  witness, 
in   effect,    certifies   to   his   knowledge   of   the   mental 
capacity  of  the  testator,  and  that  the  will  was  executed 
by  him  freely  and  understandingly  with  a  full  knowl- 
edge of  its  contents.     Such  is  the  legal  effect  of  the 
signature  of  the  witness  when  he  is  dead  or  is  out  of 
the  jurisdiction  of  the  court.1 

8.  Capacity  for  Making  a  Will. — What  constitutes 
mental  capacity  to  make  a  will  is  a  subject  on  which 
the  courts  have  differed.     The  American  courts  have 
held   to  the  proposition  that  a  person  not  perfectly 
sane  might  possess  sufficient  mental  capacity  to  make 
a  will.2    In  Indiana  under  the  statute  no  one  of  "un- 
sound   mind"    can    make   a   will.       Accordingly   it   is 
error  to  charge  in  a  contest  that  in  order  to  make  a 
will  a  testator  must  have  a  sound  mind;  that  is,  "a 
mind  wholly  free  from  error."3     Testamentary  capacity 
and    contractural    capacity    are    so    different    in    their 
nature  that  it  is  impossible  to  use  one  as  a  test  for 
measuring  the  other,  or  to  say  that  the  existence  of 

1  Scribner  v.  Crane,  2  Paige  (N.  Y.),  147. 

1  Bulger  v.  Ross,  98  Ala.,  267;  Couch  v.  Gentry,  113  Mo.,  248;  Schreiner  v. 
Schreiner,  178  Pa.,  57. 

1  Schreiner  ».  Schreiner,  178  Pa.,  57. 


CAP  AC  /  TV  FOR  MAKING  A  WILL  315 

one  either  proves  or  disproves  the  other's  existence 
conclusively.1 

The  true  test  of  testamentary  capacity  seems  to 
be  that  the  testator  must  have  strength  and  clearness 
of  mind  and  memory  sufficient  to  know  in  general, 
without  prompting,  the  nature  and  extent  of  the 
property  of  which  he  is  about  to  dispose,  the  nature 
of  the  act  which  he  is  about  to  perform,  and  the 
names  and  identity  of  the  persons  who  are  the  proper 
objects  of  his  bounty,  and  his  relation  toward  them.2 
The  rule  of  testamentary  capacity  does  not  require 
a  perfect  memory.3  The  existence  in  the  mind  of  a 
testator  of  mere  delusions  which  do  not  affect  either 
the  natural  or  selected  objects  of  his  bounty  is  not 
inconsistent  with  testamentary  capacity.4 

Drunkenness. — Drunkenness,  unless  so  complete  as 
to  destroy  the  victim's  capacity  to  understand  what 
he  is  doing,  will  not  invalidate  his  will. 

Old  Age. — It  is  well  settled  that  extreme  old  age  of 
the  testator  alone  does  not  render  him  incompetent  to 
make  a  will;  great  age,  bodily  infirmity,  and  impaired 
mind  do  not  invalidate  a  will;  if  the  testator  still 
retains  sufficient  mind  to  enable  him  to  comprehend 
the  property  he  has  and  the  deserts  of  the  persons  to 
whom  he  wishes  to  devise  or  bequeath  it.  Mere 
physical  weakness  or  disease,  old  age,  eccentricities, 
blunted  perceptions,  weakening  judgment,  failing  mem- 
ory or  mind  are  not  necessarily  inconsistent  with 
testamentary  capacity,  but  evidence  of  such  facts 

1  Turner's  Appeal,  72  Conn.,  305;  Brown  v.  Mitchell,  88  Tex.,  350. 

*  Smith  v.  Henline,  174  111.,  184;  Hudson  r.  Hughan,  56  Kan.,  152;  Schmidt 
v.  Schmidt,  47  Minn.,  451;  Couch  r.  Gentry,  113  Mo.,  248;  Franke  P.  Shipley, 
22  Or.,  104;  Chappell  v.  Trent,  90  Va.,  849. 

.  »  Henry  v.  Hall,  106  Ala.,  84;  Taylor  ».  Pegram,  151  111.,  106;  Sharp's  Appeal, 
134  Pa.,  492. 

4  Church  v.  Crocker,  7  Ohio  C.  C.,  327. 


316  WILLS 

may   be   considered   in   determining  whether  testator" 
has  sufficient  capacity. 

9.  Undue  Influence. — Undue  influence  is  "such  as 
in  some  measure  destroys  the  free  agency  of  testator 
and    prevents   the   exercise   of   that   discretion   which 
the  law  requires  that  the  party  should  possess."1     It 
consists    in    such    influence,  overpersuasion,   coercion, 
or  force  as  destroys  the  free  agency  and  will  power  of 
testator.2 

Appeals  to  the  affections  and  emotions  of  testator, 
solicitation,  and  persuasion  may  be  carried  to  such 
a  degree  as  to  overpower  his  mind,  and  in  such  case 
will  amount  to  undue  influence.3  Flattery  may  be  of 
such  sort  as  will  amount  to  undue  influence.  This  is 
usually  combined  with  deceit  and  solicitation.4  Fraud 
and  deceit  may  be  made  the  means  whereby  testator's 
mind  is  overpowered,  in  which  case  they  will  amount 
to  undue  influence.5  Undue  influence  need  not  neces- 
sarily have  been  exerted  by  a  beneficiary  under  the 
will;  but  in  order  to  avoid  the  will,  it  must  be  shown 
that  the  undue  influence  operated  at  the  time  that 
the  will  was  made,  and  caused  its  execution.6 

10.  Right    of    Testator    to    Cut    off    Child. — In    the 
majority  of  States  at  the  present  time  there  is  no  legal 
objection    to    a    man    making   a  will    which    cuts    off 
all  or  any  of  his  children  from   any  participation  in 
his  estate,  or  which  divides  it  very  unequally  among 

1  Johnston  v.  Armstrong,  97  Ala.,  731;  12  So.,  72. 

2  Riley  v.  Sherwood,  144  Mo.,  354. 

3  Eastis  v.  Montgomery,  93  Ala.,  293;  9  So.,  311;  Grove  v.  Spiker,  72  Md., 
300;  Thompson  v.  Ish,  99  Mo.,  160. 

4  Orchardson  v.  Cofield,  171  111.,  14. 

8  Coyhill  v.  Kennedy,  119  Ala.,  641;  24  So.,  459;  Jones  v.  Simpson,  171 
Mass.,  474;  Haines  v.  Hayden,  95  Mich.,  332;  Gordon  v.  Burris,  153  Mo., 
223,  54  S.  W.,  546. 

6  Kaufman's  Estate,  117  Cal.,  288;  Reichenbach  v.  Ruddach,  127  Pa.,  564. 


FORM  OF  WILL  317 

them;  but  in  other  States  the  law  requires  that  some 
provision  be  made  for  every  child  or  the  will  is  void. 

11.  Nuncupative    Wills. — Most    statutes    allowing 
nuncupative,  or  unwritten,  wills  agree  that  in  order  to 
make  a  valid  will  the  testator  must  be  of  full  age,  of 
sound  memory  and  mind,  and  not  under  any  restraint; 
it  must  be  made  in  the  last  sickness  and  can  only 
relate   to   personal   property;   the   testator   must   call 
upon  the  witnesses  to  the  requisite  number,  and  in 
the  presence  of  the  requisite  number,  to  bear  witness 
that  the  words  spoken  by  him  are  his  last  will.    With- 
out this  the  will  is  invalid  no  matter  how  clear  the 
testamentary  intent.1 

It  is  generally  provided  by  statute  that  a  nuncupa- 
tive will  must  be  reduced  to  writing  and  subscribed 
by  the  requisite  number  of  competent  witnesses 
within  the  time  fixed  by  statute,  which  is  generally 
a  very  short  one.  Omission  to  comply  with  this 
provision  renders  the  will  a  nullity.2  Even  if  reduced 
to  writing  within  the  time  limit  the  will  is  avoided 
if  not  also  subscribed  by  the  required  number  of 
witnesses  within  the  time  fixed  by  statute.3  In  view 
of  the  necessities  of  the  case  it  is  held  that  the  exact 
words  used  by  the  testator  need  not  be  reduced  to 
writing.  It  is  sufficient  if  their  substance  can  be 
thus  reduced.4 

12.  Form  of  Will. — Under  the  codes  a  will,  with  the 
exception  of  the  nuncupative  will,  must  be  in  writing. 
Verbal  additions  cannot  alter  a  written  will.5     It  is 
generally   held,   in   the   absence   of  special   statutory 

1  Sampson  v.  Browning,  22  Ga.,  293;  Grossman's  Estate,    175  111.,  425; 
Biddle  r.  Biddle,  36  Md.,  630. 

1  George  v.  Greer,  53  Miss.,  495;  Taylor's  Appeal,  47  IJa.,  31. 
1  Welling  P.  Owings.  9  Gill  (Md.),  467. 
4  Rolles  v.  Harris,  34  O.  S.,  38. 
*  Knight ».  Tripp,  121  Cal.,  674;  Smith  v.  Smith,  54  N.  J.  Eg.,  i. 


318  WILLS 

authority,  that  any  material  which  can  be  used  to 
write  upon  may  be  used.1  As  to  material  with  which 
the  writing  is  done,  ink  is,  of  course,  the  best,  whether 
applied  with  a  pen  or  a  typewriter;  but  it  may  be 
written  in  lead  pencil.  A  will  written  on  a  slate  is 
so  easy  to  alter  that  the  courts  will  not  recognize  it.2 
The  will  may  be  written  in  any  language,  whether 
the  testator  is  acquainted  with  that  language  or  not.3 
However,  the  testator  must  know  the  nature  of  the 
act  which  he  is  performing;  and  the  fact  that  the 
will  is  drawn  up  in  a  language  foreign  to  the  testator 
may  be  shown  to  prove  that  he  did  not  execute  the 
will  animo  testandi.4 

The  will  should  be  signed  at  the  end  thereof  by  the 
testator  or  by  someone  signing  his  name  in  his  presence, 
and  by  his  express  direction.  The  signature  may  be 
in  ink  or  with  a  pencil,  or  with  a  stamp,  or  a  seal.5 

The  signature  may  consist  of  a  mark,  but  when 
signed  by  a  mark,  it  must  also  be  attested  and  sub- 
scribed in  the  presence  of  the  maker  by  two  or  more 
competent  witnesses,  who  either  saw  the  maker  sign 
it  or  heard  him  acknowledge  that  it  was  his  will.  A 
signature  of  the  testator's  name  made  by  another  out 
of  his  presence  is  not  a  valid  signature.6 

Form  of  Will. — In  the  name  of  the  benevolent 
Father  of  all,  amen:  I,-  — ,  of  the—  -of-  — , 
county  of  -  — ,  being  about  -  -  years  of  age, 

and  being  of  sound  and  disposing  mind  and  memory, 
do  make,  publish,  and  declare  this  my  last  will  and 

1  Rymes  v.  Clarkson,  i  Phill.,  22. 

2  Temple  v.  Mead,  4  Vt.,  535;  Harris  v.  Pue,  39  Md.,  535;  Reed  v.  Woodward, 
II  Phila.  (Pa.),  541. 

3  Hoshauer  v.  Hoshauer,  26  Pa.,  404;  Walter's  Will,  64  Wis.,  487. 

4  Miltenberger  v.  Miltenberger,  78  Mo.,  27. 

6  Word  v.  Whipps,  28  S.  W.,  151;  Knox's  Estate,  131  Pa.,  220. 
«  Catlett  v.  Catlett,  55  Mo.,  330. 


FORM  OF  WILL  319 

testament,  hereby  making  null  and  void  all  other  last 

wills  and  testaments  by  me  made  heretofore: 

First.    My  will  is  that  all  my  just  debts  and  funeral 

expenses  be  paid  out  of  my  estate  as  soon  after  my 

decease  as  shall  be  found  convenient. 

Second.  I  give,  devise,  and  bequeath  to  - 
Third.  I  give,  devise,  and  bequeath  to  - 
In  testimony  whereof  I  have  set  my  hand  to  this, 

my  last  will  and  testament,  at  -  — ,  this  - 

day  of—       — ,  in  the  year  of  our  Lord  one  thousand 

nine  hundred  and  twelve. 


Signature  of  testator. 

The  foregoing  instrument  was  signed  by  the  said 
in  our  presence  and  by  him  published  and 


declared  as  and  for  his  last  will  and  testament,  and  at 
his  request,  and  in  his  presence,  and  in  the  presence 
of  each  other  we  hereunto  subscribe  our  names  as 
attesting  witnesses  at-  -this-  —day  of—  — , 
A.D.  1912. 

— ,  resides  at  - 
— ,  resides  at  - 


INDEX 


ABANDONMENT  of  patient,  164 
consent  to,  164 
notification  of,  164 

Abbreviations  in  books  of  account,  1 1 8 
Abortion,  230-242 

articles  for  procuring  of,  232 
defences  for  procuring  of,  234       j 
definition  of,  230 
elements  of  offence  in,  231 
evidence  in,  237 

instruments  for  procuring  of,  232 
justification  for  procuring  of,  234 
means  employed  in  procuring  of, 

232 

mode  of  trial  in,  237 
Account  book  as  evidence,  118 

how  to  be  kept,  118 
Acknowledgment  of  debt,  effect  of, 

114 

Administration  of  anesthetics,  150 
of  domestic  medicine  for  pay,  63 
of  patent  medicines,  61 
Admission  to  practice,  38 
license  for,  41 
requirements  for,  38 
sufficiency  of  license  for,  43 
who  may  issue  license,  43 
Advertising,  obscene,  as  crime,  253 

as  unprofessional,  49 
Agency  of  child  for  parent,  94,  95 

of  wife  for  husband,  93 
Anesthetics,  care  in  use  of,  1 50 
Assistant,  malpractice  of,  194,  195 
right  of,  to  compensation,  87 
Autopsy,  consent  to  performance  of, 
169 

B 

BOARD  of  examiners,  authority  of,  44 
Bone  setting  as  practice  of  me<lirim-, 

56 

Books  of  account  as  evidence,  1 1 8 
Brother,  liability  of,  97 
Burden  of  proof  of  license,  52 
of  malpractice,  199 
of  right  to  practice,  41-43 
of  status  or  college,  52 
21 


CARE,  degree  of,  130 

due  patient,  65 

duty  of  patient  to  exercise,  196 
Certificate,  41 
Chiropractic  as  practice  of  medicine, 

59 
Christian  Science  defined,  27 

as  practice  of  medicine,  55 
Clairvoyance  as  practice  of  medicine, 

58 
College,  status  of,  52 

power  of  medical  board  over, 

38 

Compensation   as   affected    by  mal- 
practice suit,  8 1 
amount  of,  109 
in  cases  of  epidemics,  113 
as  dependent    on    contract,    79, 

109 

liability  of  brother  for,  97 
of  child  for,  95 
of  husband  for,  92 
of  parent  for,  93 
of  son-in-law  for,  97 
of  wife  for,  93 
right  of  physician  to,  79-90 
for  services  of  consultant,  86 
under  express  agreement,  109 
under  implied  agreement,  109 
when  barred,  114 
when  due,  115 

where  illness  prevents  perform- 
ance of  contract,  90 
Confidential    communications.       See 

Privileged  Communications. 
Consent  to  autopsy,  169 
to  operation,  164 
presumption  of,  165 
of  relatives,  164 
to  services  of  consultant,  86 
Consulting  physician  defined,  24 

nght  to  compensation,  86 
Contract  as  affected  by  custom,  68 
conditional,  85 
delegation  of,  195 
express,  68 
implied,  68 
of  infants,  91 


322 


INDEX 


Contract,  no  cure  no  pay,  85 

oral,  68 

in  restraint  of  trade,  309-311 

Sunday  contracts,  78 

written,  68 
Contributory   negligence   of   patient, 

196-199 

Corporations,  right  of,  to  practice,  64 
County,  liability  of,  105 
Crime.    See  Chapter  VII. 
Cure,  warranty  of,  133 
Custom  as  affecting  contract,  68 


DAMAGES,  compensatory,  211 

exemplary,  215 

nominal,  215 

right  of  patient  to,  211 
Deceit,  liability  for,  188 
Definition  of  abortion,  230 

of  bone  setter,  27 

of  Christian  Science,  27 

of  consulting  physician,  24 

of  ethical  malpractice,  129 

of  hypnotism,  28 

of  hypothetical  question,  285 

of  ignorant  malpractice,  130 

of  itinerant  physicians  and  sur- 
geons, 25 

of  magic  healers,  28 

of  magnetic  healing,  27 

of  malpractice,  129 

of  midwifery,  26 

of  miscarriage,  230 

of  oculist,  26 

of  ophthalmology,  26 

of  optician,  26 

of  optometry,  26 

of  physicians,  23 

of  specialists,  25 

of  surgeons,  24 

of  wilful  malpractice,  129 

of  wills,  312 

Degree  of  care  required,  130 
of  patient,  196 

Delay  in  bringing  suit,  114,  202 
Delegation  of  contract,  195 
Dentistry,  liability  for  practising  of, 

.254 

Diagnosis,  liability  for  error  in,  153 
Diploma    as    evidence    of     right    to 

practice,  38,  52 
fraudulent  use  of,  50 
genuineness  of,  52 
proof  of,  52 
withdrawal  of,  47-50 
Discharge  of  patient,  70 
Dishonorable  conduct,  effect  of,  48 
meaning  of,  48-50 


Doctor  of  dermatology,  60 

Duty  of  physician,  65 

as  to  appliances,  72 

to    avoid    communicating 

-   diseases,  74 

to  continue  visits,  70 

as  to  diagnosis,  71 

as  to  frequency  of  visits,  70 

to  give  instructions,  73 

as  to  use  of  anesthetics,  73 


E 


ELECTRIC  treatments,  59 

Employer,  liability  of,  for  services  to 

employee,  97 

Evidence.    See  Chapter  IX. 
in  abortion  cases,  237-244 
in  actions  for  compensation,  115- 

123 

in  malpractice  cases,  203 
Examination  for  admission  to  practice, 

38. 

physical,  of  witness,  209 
Execution,  exemption  from,  256 
Exemption  of  consultants  from  other 
States,  36 

from  execution,  256 

from  jury  duty,  256 
Expert  in  abortion  cases,  273 

bias  of,  278 

in  cases  concerning  wounds,  265 

on  cause  of  death,  266 
of  miscarriage,  274 
and  nature  of  disease,  268 

competency  of  opinion  of,  264 
of  physician  as,  259 

compulsory  attendance  of,  282 

in  detection  of  poison,  275 

on  effect  of  drugs,  276 

fees  of,  282 

in  malpractice  cases,  269 

as  to  mental  condition,  276 

qualifications  necessary  for,  261 

on  question  of  pregnancy,  274 

in  rape  cases,  269 

reexamination  of,  287 

in  seduction  prosecutions,  273 

weight  of  opinions,  277 


FALSE      representations,      obtaining 

money  by,  250 
Fee.     See  also  Compensation. 

as  witnesses,  285 
Forfeiture  of  license,  47 

for    fraudulent    use    of    di- 
ploma, 50 


INDEX 


323 


Forfeiture  of  license  for  gross  immor- 
ality, 49 

for  unprofessional   conduct, 
48 

Frauds,  statute  of,  108 

Frequency  of  visits,  70 


GIFTS  of  patient,  75 


HEALERS  as  physicians,  58 
Homicide,  liability  for,  219 
Hospitals,  liability  for  acts  of  servants, 

200 
Husband,  liability  of,  92 

right  of,  to  choose  physician,  164 
Hypnotism  defined,  28 

as  practice  of  medicine,  60 
Hypothetical  question,  285 


INCOMPETENCY  of  witness,  259 

Infamous     conduct    as    ground    for 
revoking  license,  47-50 

Infant,  liability  of,  91 

Infection  of  patient,  155 

Instructions,  duty  to  give,  162 

Instruments,  care  of,  155 
exemption  of,  256 

Insurer,  physician  as,  133 

Interest  on  claim,  113 

Intoxicating    liquors,     illegally    pre- 
scribing, 297 

Itinerant    physicians     and    surgeons 

defined,  25 
taxation  of,  37 


JURY  duty,  exemption  from,  256 


LIBEL  and  slander  of  physician,  301- 

308 
License,  forfeiture  of,  47 

as  prerequisite  to  practice,  41 

registration  of,  45 

revocation  of,  47 

sufficiency  of,  43 

who  may  issue,  43 
Limitations,  statute  of,  114,  202 


Limitations,  statute  of,  in  actions  for 

compensation,  114 
in  malpractice  suits,  202 


M 


MAGIC  healers  defined,  28 
Magnetic  healers  defined,  28 
Malpractice,  129-216 
action  for,  200 
as  affected  by  gratuitous  services, 

148 

as  affecting  right  to  compensa- 
tion, 115 

by  assistant,  194,  207 
defences  to  action  for,  206 
definition  of,  129 
effect  of  gratuitous  services  on,  148 
failure  to  cure  as,  133 

to  secure  consent  to  opera- 
tion, 164 
how  proved,  203 
for  neglect  as  to  appliances,  155 
new  trial  for,  216 
by  partner,  195 
by  substitute,  195 
in  surgical  cases,  171 
in  use  of  anesthetics,  1 50 
in  vaccination,  184 
when  suit  must  be  commenced,  202 
who  may  recover  for,  202 
for    wrongful   certificate   of    in- 
sanity, 190 

Mechanoneural  therapy  as  constitut- 
ing practice  of  medicine,  59 
Midwifery  defined,  26 

as  practice  of  medicine,  57 
Mistake  of  physician,  136 
Moral  character  as  prerequisite     to 
practice,  52 


NECESSARIES,  liability  of  husband  for, 

92 

of  infant  for,  91 
of  parent  for,  93 
what  are,  91 
Necessity,  work  of,  78 
Negligence.    See  Malpractice, 
of  patient,  196 
proof  of,  199 


OBSCENE  advertisement  as  crime,  253 
Obtaining   money    under    false    pre- 
tence, 250 


324 


INDEX 


Oculist  defined,  26 

Operation,  lack  of  consent  to,  164 

care  and  skill  required  in,  171 
Ophthalmology  defined,  26 
Opinions  as  evidence,  264 
Optician  defined,  26 
Osteopathy  defined,  26 

as    practice     of     medicine     and 
surgery,  64 


PARENT,  liability  of,  93 

necessity  of  consent  of,  164 
Parties  in  actions  for  fee,  90-108 

for  malpractice,  202 
Patient,  care  required  of,  196 
consent  of,  to  operation,  164 
failure  to  obey  instructions,  198 
negligence  of  delirious,  198 
unconscious,  liability  of,  91 
Partner,  malpractice  of,  195 
Payment,  effect  of  part,  114 
Practice  of  medicine,  how  regulated, 

30-64 

right  to  regulate,  30 
what  constitutes,  53-63 
Prescription,  liability  for  error  in,  155 
Privileged  communications,  289 
waiver  of,  298,  299 
what  matters  are,  294-297 
who  may  claim,  298 
Professional  tax,  37 


RAPE,  expert  testimony  as  to,  269 
Registration  of  license,  45 
Report  of  births  and  deaths,  37 

of  contagious  diseases,  37 
Reputability  of  college,  40 
Requirements  for  admission  to  prac- 
tice, 38 
Revocation.     See  License. 


SCHOOL  of  medicine,  what  constitutes, 

39 

Science  of  light  as  practice  of  medi- 
cine, 57 

Skill,  duty  to  possess,  130 
Soliciting,  statutes  forbidding,  36 
Son-in-law,  liability  of,  97 
Specialists,  care  required  of,  149 

defined,  25 
Statutes,  constitutionality  of,  30 

of  frauds,  108 


Statutes  governing  profession,  30-37 

of  limitations,  114,  202 
Student,  liability  for  negligence  of,  194 
Substitute,  liability  for  negligence  of, 

195 

Sunday,  compensation  for  services  on, 

89 

contracts  made  on,.  7 8 
Surgeons  defined,  24 

liability  of,  for  acts  of  assistants, 

194 
for  malpractice,  171 


TAXATION  of  profession,  37 

Towns,  liability  of,  for  services  ren- 
dered pauper,  105 

Trial  in  action  for  fees,  114-123 
in  malpractice  cases,  200-216 
preparation  for,  1 14,  200 


U 


UNCONSCIOUS  patient,  liability  of,  91 
Undue  influence  over  patient,  75 

in  wills,  316 

Unprofessional  conduct  as  ground  for 
revoking  license,  48 


VACCINATION,  negligence  in,  184 
Vending  patent  medicines,  61 
Vessels,  liability  for  attendance  upon 

seaman,  102 

Visits,  continuation  of,  70 
frequency  of,  70 


W 

WAIVER  of  exemption  from  testifying, 

298 

Warranty  of  cure,  133 
Wife,  liability  of,  93 
Wills,  capacity  for  making  of,  314,  315 

definition  of,  312 

form  of,  317-319 

nuncupative,  317 

publication  of,  313 

signature  to,  313 

subscription  to,  313 

who  may  make,  312 
Witnesses.    See  also  Experts. 

bias  of,  278 

in  cases  of  abortion,  273 

concerning  wounds,  265 


INDEX 


325 


Witnesses  in  cases 

269 

of  miscarriage,  274 
of  rape,  269 
on  cause  of  death,  266 
compulsory  attendance  of.  285 
on  effect  of  drugs,  276 
exemption    of,    from     testifying 

289 

fees  of,  282 
as  to  mental  condition,  276 


of    malpractice,    Witnesses,  opinions  of.  264,  277 

privileged     communications     of, 

289 
Women,  right  to  practice,  63 


X-RAY  treatment  as  practice  of  medi- 
cine, 142 
malpractice  in,  185 


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